Opinion
B327163
10-17-2023
In re M.G., a Person Coming Under the Juvenile Court Law. v. M.G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 18CCJP00962D, Nancy Ramirez, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
LAVIN, J.
INTRODUCTION
Maria G. (mother) appeals a juvenile dependency jurisdictional finding and a removal order imposed under Welfare and Institutions Code section 300, subdivision (b), as to her son, M.G. (the minor). We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL BACKGROUND
1. Detention
Mother and the minor (now 17 years old) most recently came to the attention of the Department of Children and Family Services (Department) on September 6, 2022. The minor reported to a Department social worker that he no longer had a place to live and had been sleeping on the floor of friends' houses for the past several nights. The minor explained that on September 4, 2022, mother and the minor were scheduled to drive to Kansas in order to relocate there. That morning, the minor went to a friend's house because he did not want to leave with mother. A few hours later, he called mother to ask her to pick him up. She refused, saying she had already driven out of town and would not return for him. Mother cursed, then hung up. On September 6, 2022, the minor called mother, who reportedly said, "you left and make this a lesson to you, stop running away from home." The minor had no nearby family members with whom he could stay.
The minor's biological father is deceased.
A Department social worker contacted mother by phone. Mother denied abandoning the minor, saying that he ran away from home frequently and she had filed a missing person report before she left for Kansas. When the minor called her on September 4, 2022, mother was halfway to Arizona and she admitted that she refused to turn around and pick him up. She reported that the minor was manipulative and out of control, and she did not care if he went back into the dependency system. Mother said she did not want the minor with her at that time due to his behavior. During their last conversation, the minor said to mother" 'I hope you die.' "
On September 8, 2022, the Department filed a petition alleging dependency jurisdiction under section 300, subdivision (b), due to mother's failure to make a plan for the minor's care and supervision when she moved to Kansas. The Court detained the minor from mother on September 9, 2022 and he was placed in a short term residential therapeutic program (facility). The court ordered unmonitored telephonic or video visits one a week, and unmonitored in person visits when mother is in Los Angeles.
2. Investigation
Mother's four children, including the minor, had previously been subject to dependency jurisdiction, most recently in 2018. At that time, the court sustained five jurisdictional allegations under section 300, subdivisions (a), (b), (d), and (j). Those allegations related to mother's inappropriate discipline of two of the minor's female siblings (slapping one sibling with an open hand and punching another sibling in the stomach with a closed fist), and mother's failure to protect those same siblings from sexual abuse by mother's male companion. The children were initially placed with mother but were later removed from her care after she violated the no contact order regarding her male companion and asked the children to conceal that fact from the Department and the court. It appears that the minor was in foster care or short term residential therapeutic programs from mid-2019 to late 2020, at which time he returned to mother's home.
We affirmed the court's finding, at the six month review hearing, that it would be detrimental to return the minors to mother's custody. (In re Valerie G. et al. (Aug. 25, 2020, B304592) [nonpub. opn.].)
A Department social worker interviewed mother in early October 2022. She said she had planned to move to Kansas with the minor, but that he had chosen not to go in order to stay with his friends and his girlfriend. Mother also explained that the minor has attention deficit hyperactivity disorder but is not taking medication to treat it. He is also on the autism spectrum but is high functioning. She stated the minor would leave her home for days to spend time with friends and that he was "disrespectful," demanding, and "out of control." She said she would not make any effort to bring the minor to Kansas" 'until his behavior changes.'" As of early October 2022, mother had not yet found housing for herself in Kansas. She had no plans to return to California. Mother made her first telephone contact with the minor on October 2, 2022.
The minor's history indicated that he had substance abuse disorder (marijuana), untreated attention deficit hyperactivity disorder (the minor refuses to take medication), autism spectrum disorder, and negative behavior. He can be aggressive and difficult to engage. While at the facility, he was aggressive toward peers, including bullying and smearing feces in the bathrooms. The minor also ran away from the facility twice during the period of supervision.
In late October 2022, mother agreed to participate in the minor's life and said she would like the minor to join her in Kansas. She did not have accommodations for him at that time, however.
The adjudication hearing, originally set on October 24, 2022, was postponed because the minor ran away from the facility again and had not yet been located. He was later located at his sibling's home and, because his placement was closed due to his lengthy absence, the facility was no longer available to him. He was placed in a foster home. The minor later refused therapeutic services and a psychotropic medication evaluation.
In early November 2022, the minor reported that he was "doing really well" in his foster placement and was being treated as a family member. The minor's girlfriend visited and the foster mother monitored the visit. The minor enrolled in school and reported he was doing well and that the foster mother's biological children looked out for him there. The Department reported that the minor was doing well and was stable in the foster placement.
At the same time, both mother and the minor stated that they wished to reunify. Mother had rented an apartment and found a job as a caregiver. She worked six days a week, eight to 10 hours a day. Mother said her main priority was to bring the minor to live with her and she would also house the minor's pregnant girlfriend and the baby, after it was born.
The Department recommended that the minor be reunified with his mother in Kansas.
3. Adjudication, Removal, and Appeal
The court held the adjudication hearing on November 29, 2022, when the minor was nearly 17 years old. The court sustained the following allegation under section 300, subdivision (b): "[Mother] failed to make an appropriate plan for the child's ongoing care and supervision. On or about 9/04/22, the mother moved out of the State of California while the child was missing. On 9/4/2022, the child reached out to the mother and requested that the mother return to California for the child. The mother refused to return to California and refused to make a plan for the child's ongoing care and supervision. The mother's failure to make an appropriate plan for the child's ongoing care and supervision endangers the child's physical health and safety and places the child at risk of serious physical harm, damage and danger."
In explaining its ruling, the court noted that "there are issues-underlying issues here that are unresolved in terms of mother's relationship with [the minor] and her ability to provide appropriate care and supervision for him. He is a child with special needs. He is on the autism spectrum." Minor's counsel also disclosed that the minor may have had a change of heart about relocating to Kansas. The court ordered the minor to remain in suitable placement under the Department's supervision, directed the Department to interview the minor about his wishes regarding disposition, and set the matter for a contested disposition hearing.
In a last minute information dated December 11, 2022, the Department reported the minor was happy mother finally found an apartment, but he was not ready to relocate to Kansas. The minor said his foster mother was doing an amazing job raising him, he was doing well at school, and he wanted to graduate from his current school. He also wanted to stay in California to be near his pregnant girlfriend. The Department spoke with mother and conveyed the minor's wishes to her. She responded," 'There's nothing I can do. I understand and support his decision.'" As a result, the Department changed its recommendation. Instead of relocating the minor and terminating jurisdiction, the Department recommended retaining jurisdiction over the minor and continuing to offer mother family reunification services.
On December 14, 2022, the court held the contested disposition hearing. Mother's counsel asked the court to disregard mother's prior statement acquiescing in the minor's decision to remain in California, stating mother did not know she had choice in the matter. The court, however, ordered the minor removed from mother with further family reunification services, noting the minor was nearly 17 years old, able to make decisions, and had a history of running away from mother's home. The court also ordered that mother could have unmonitored and overnight visitation with the minor in Los Angeles at a location approved by the Department.
DISCUSSION
Mother contends the adjudication and removal orders are not supported by substantial evidence. We disagree.
1. The jurisdictional finding is supported by substantial evidence.
1.1. Legal Background and Standard of Review
The juvenile court has jurisdiction over a child if the Department establishes by a preponderance of the evidence that the allegations made pursuant to section 300 are true. (§ 355, subd. (a); In re I.J. (2013) 56 Cal.4th 766, 773.) As relevant here, section 300, former subdivision (b)(1), authorized the juvenile court to assume jurisdiction when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of the child's parent ... to adequately supervise or protect the child ... ."
Effective January 1, 2023, the Legislature amended section 300. (Stats. 2022, ch. 832 (S.B. 1085), § 1.) The quoted provision is now codified in section 300, subdivision (b)(1)(A).
"A jurisdiction finding under [former] section 300, subdivision (b)(1), requires the Department to prove three elements: (1) the parent's or guardian's neglectful conduct or failure or inability to protect the child; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness." (In re Cole L. (2021) 70 Cal.App.5th 591, 601 (Cole. L.); and see In re R.T. (2017) 3 Cal.5th 622, 624 (R.T.) ["[S]ection 300(b)(1) authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child."].) Although section 300 requires the child to be at risk of serious harm at the time of the jurisdiction hearing, "the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (Cole L., at pp. 601-602; accord, In re L.O. (2021) 67 Cal.App.5th 227, 238 [" 'Although there must be a present risk of harm to the minor, the juvenile court may consider past events to determine whether the child is presently in need of juvenile court protection.' "].) If there is reason to believe the conduct will continue, a parent's past conduct may be probative of current conditions. (Cole L., at p. 602; accord, In re S.F. (2023) 91 Cal.App.5th 696, 713.)
We review the juvenile court's jurisdictional findings for substantial evidence in light of the record as a whole. (In re I.C. (2018) 4 Cal.5th 869, 892; R.T., supra, 3 Cal.5th at p. 633 [" 'In reviewing the jurisdictional findings and disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them.' "].) Substantial evidence is "evidence which is reasonable, credible, and of solid value." (In re I.C., at p. 892; accord, Cole L., supra, 70 Cal.App.5th at p. 602.)" '[W]e draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court.'" (R.T., at p. 633; accord, In re I.J., supra, 56 Cal.4th at p. 773; Cole L., at p. 602 ["[W]hile substantial evidence may consist of inferences, any inferences must rest on the evidence; inferences based on speculation or conjecture cannot support a finding."].) The appellant has the burden to show there is not substantial evidence to support the juvenile court's findings or order. (In re E.E. (2020) 49 Cal.App.5th 195, 206.)
1.2. Analysis
The court found true the jurisdictional allegation that mother placed the minor at a substantial risk of harm by failing to make an appropriate plan for his care and supervision when, on September 4, 2022, mother left California and relocated to Kansas even though she was unable to find the minor when she departed. Substantial evidence supports the court's jurisdictional finding.
Although mother claims she did not "abandon" the minor, the evidence demonstrates otherwise. On September 4, 2022, mother and the minor were scheduled to drive to Kansas in order to relocate there. That morning, the minor went to a friend's house because he did not want to leave with mother. Mother, frustrated with the minor's habit of running away from home, simply left without him. And when the minor called her just a few hours later, mother refused to turn around and instead kept driving. Two days later, the minor called mother and she was unapologetic for her behavior, saying, "you left and make this a lesson to you, stop running away from home." And mother later stated that she did not care if he went back into the dependency system and did not want him with her until he changed his behavior.
At the time mother left for Kansas, the minor was 16 years old. He had been diagnosed with several medical issues including autism spectrum disorder, and mother reported that he "doesn't understand the magnitude of making decisions." Further, the minor had no family in the area with whom he could stay for more than a night or two, leaving him to sleep on the floor at friends' houses. We have no difficulty concluding that moving out of state and leaving a teenage child with special needs behind to fend for himself placed the minor at a substantial risk of harm.
Mother does not argue otherwise but asserts the minor was no longer at a substantial risk of harm at the time of the jurisdictional hearing, thereby rending the court's jurisdictional finding unsupported by substantial evidence. Specifically, mother notes that by November 2022, she had rented an apartment, found employment, and wanted the minor to join her in Kansas. She also indicated that the minor's girlfriend and soon-to-be-born baby could join them, and they could live together as a family. At some point, the minor had agreed to relocate to Kansas, and the Department had recommended that the minor move to join mother there. Thus, mother asserted that she had, by the time of the adjudication hearing, made an appropriate plan for the minor's care and supervision and therefore he would not be at a substantial risk of harm in her care.
But as the court acknowledged, deep rooted issues between mother and the minor had not yet been addressed. And the minor's behavioral issues-anger issues, bullying, aggressive behavior, running away from home, smoking marijuana, refusing to attend school-had not been addressed at that point either. We are therefore concerned, at least in part, with an incorrigible teenage minor and a mother who has difficulty coping effectively as a parent.
The leading case addressing this situation is R.T., where the facts closely mirror those before us. R.T. was a 17-year-old girl who, at age 14, began running away from home for days at a time and skipping school. She falsely reported her mother had abused her. (R.T., supra, 3 Cal.5th at p. 625.) At age 15, R.T. gave birth to a daughter (who became a juvenile court dependent) and had another child a few years later. (Ibid.) The mother tried unsuccessfully to supervise and protect R.T. and sought support from the child welfare agency and law enforcement. She later arranged for R.T. to live with maternal grandparents because R.T.'s grandfather used to work with troubled youth and R.T.'s history of falsely reporting abuse by mother made it difficult for mother to discipline her. (Ibid.) R.T. struggled with "anger management issues," as it was reported she threw a chair at her maternal grandfather. (Ibid.) The juvenile court had asserted jurisdiction over R.T., reasoning that" 'the mother cannot control [R.T.] so she has given her off to grandparents and they can't control her either.'" (Ibid.)
In affirming the juvenile court's exercise of jurisdiction, our Supreme Court embraced the mother's insistence that "she was not at fault or blameworthy because she did everything possible to control R.T.'s incorrigible behavior." It also agreed with mother that she "did not create" the danger that R.T. would be at risk of serious physical harm. (R.T., supra, 3 Cal.5th at p. 633.) From that baseline, the Court began with an analysis of section 300:" 'Generally speaking, Section 300 defines jurisdiction in terms of serious harm suffered by a child or the substantial risk of such serious harm to a child. Although the harm or risk of harm to the child must generally be the result of an act, omission or inability of one of the parents or guardians, the central focus of dependency jurisdiction is clearly on the child rather than the parent.'" (R.T., at p. 626, quoting Seiser &Kumli, Cal. Juvenile Courts Practice and Procedure (2017 ed.) § 2.14, p. 2-40.) The Court framed the question at hand: "[M]ust a parent in some way be blameworthy for being unable to supervise or protect her child? Or does the parent's failure or inability alone support a juvenile court's assertion of dependency jurisdiction under section 300(b)(1)?" (R.T., at p. 627, fn. omitted.) After extensively analyzing the statute, the Court adopted the latter view, finding the Legislature intended to include children like R.T., i.e., those at substantial risk of serious physical harm due to no fault of the parent, within the purview of dependency jurisdiction. (Id. at p. 632.)
Mother attempts to distinguish the present case from R.T., insisting that her situation has changed and she is prepared to have the minor (and, possibly, his girlfriend and their baby) join her in Kansas. But although her living situation has changed since the outset of these proceedings, and her willingness to participate in the minor's life has changed, there is no evidence that she is any better prepared to deal with the minor's behavior than she was before her relocation. Indeed, mother objected to the Department's proposed case plan, specifically conjoint therapy for mother and the minor and parenting classes for mother. The same is true of the minor. The record contains no indication that his aggressive and belligerent behaviors would be any different in Kansas, or that the risk of harm posed by those behaviors-particularly his medical conditions and consistent habit of running away from home-have abated.
Our high court has recognized the complexity and difficulty inherent in relationships such as mother's relationship with the minor." 'The loss of parental control is rarely if ever attributable solely to the parent or the child. It is instead the result of a long and complicated chain of actions and reactions culminating in the child's refusal to submit to parental authority. To attempt to affix responsibility on one party or the other is alien not only to the spirit and letter of the juvenile court laws, but to any realistic view of family relationships.'" (R.T., supra, 3 Cal.5th at p. 635.) Like the court in R.T., we recognize that when, as here, the "child's behavior places [him] at substantial risk of serious physical harm, and a parent is unable to protect or supervise that child, the juvenile court's assertion of jurisdiction is authorized under section 300(b)(1)." (R.T., at p. 637.) We therefore reject mother's contention that "[t]he circumstances which may have led to jurisdiction in September no longer existed in November of 2022."
In sum, the court did not err in finding true the jurisdictional allegation under section 300, subdivision (b).
2. The removal order is supported by substantial evidence.
2.1. Legal Background and Standard of Review
Removing a child from a parent's custody is a matter of last resort. Accordingly, section 361, subdivision (c), limits" 'the court's authority to restrict a parent's rights following the exercise of dependency jurisdiction.'" (In re S.R. (2020) 48 Cal.App.5th 204, 218-219.) The provision states in pertinent part: "A dependent child shall not be taken from the physical custody of his or 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 [was] 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).) We "must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
"A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor[s] and (2) potential detriment to the minor[s] if [they] remain[ ] with the parent. [Citation.] The parent need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re T.W. (2013) 214 Cal.App.4th 1154, 1163; see In re D.D. (2019) 32 Cal.App.5th 985, 996.) The juvenile court may consider the parent's past conduct as well as the present circumstances. (See, e.g., In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
2.2. Analysis
The same facts supporting dependency jurisdiction support the court's finding that mother was unable to provide proper care for the minor and that the minor would be at risk of harm if he were returned to her custody. (§ 361, subd. (c)(1).) As already explained, mother has been unable to provide proper care and supervision of the minor due, at least in part, to the minor's untreated medical and behavioral issues. Mother's objection to conjoint therapy and parenting classes-both of which could provide her with insight into the issues that led to the Department's intervention here-compound the problem. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [noting "[o]ne cannot correct a problem one fails to acknowledge"].) And the minor's untreated medical and behavioral issues, as already explained, create a substantial risk of harm for him.
Mother argues the removal order is not supported by substantial evidence because, at the time of the hearing on disposition, the minor was no longer at a risk of harm in her custody, as she had an appropriate plan for his care and supervision. She analogizes this case to In re M.V. (2022) 78 Cal.App.5th 944, a case in which the Court of Appeal found insufficient evidence supported removal of a minor from father's custody. This case does not assist mother. There, the child protective services agency became involved with the parents and their two children after the parents engaged in domestic violence incidents in close proximity to their very young children. Mother was the aggressor and both parents voluntarily participated in domestic violence classes during the course of the initial investigation. Father gained insight into the problems leading to the agency's interventions and the agency concluded the children would be safe in his care, so long as mother and father were not living together. (Id. at pp. 961-963.) The juvenile court, however, removed the children from father's custody.
The Court of Appeal reversed, holding the juvenile court's finding that there was substantial danger to children if returned to father's custody was not substantially supported by clear and convincing evidence. Although father recanted statements of child abuse by mother, the social worker testified that she could not think of any safety risk if the children were placed with father, father was not the offending parent during the alleged domestic violence incident involving him and mother, the agency had lifted the requirement that the parents visit the children separately, the court had granted agency discretion to lift supervision of visits altogether, and the children's counsel voiced tentative support of unsupervised visits for father. (In re M.V., supra, 78 Cal.App.5th at pp. 961-963.)
Mother asserts that, as in In re M.V., the risk of harm to the minor has been eliminated. But in In re M.V., the issue that led to the agency's intervention was domestic violence. That circumstance was not present when the children were in father's custody alone, as he was not the aggressor and, among other things, he had participated in domestic violence classes and had a greater understanding of the family's dysfunction. Here, mother has not participated in any services and objects to both conjoint therapy with the minor and parenting classes. And as we have said, nothing in the record suggests mother has gained an understanding of the dynamics leading to the Department's intervention or the dysfunction in her relationship with the minor.
Mother further relies heavily on the fact that the minor had previously agreed to relocate to Kansas and asserts, without citation to any legal authority, that his change of mind on that point is essentially irrelevant. We agree that the minor's preference regarding placement is not dispositive. Nevertheless, the court did not abuse its discretion in considering his views when making its dispositional order. (See, e.g., In re Patrick S. (2013) 218 Cal.App.4th 1254, 1265 ["[A] child's preference is not the deciding factor in a placement decision, even when that child is a teenager."]; see also In re John M. (2006) 141 Cal.App.4th 1564, 1570 [noting 13-year-old boy "was entitled to have his wishes considered [but] he was not entitled to decide where he would be placed"].)
In any event, the minor's change of heart was not the only factor the court considered. All the evidence supporting dependency jurisdiction factored into the court's removal order. Certainly, the fact that mother moved out of state while her son was missing without making a plan for him, and then maintained that she did not want him in her custody until he changed his behavior, indicates that mother is not reliably able to provide a safe and stable home environment for the minor. In addition, the minor's chronic tendency to run away from home (and from therapeutic placements) coupled with his desire to stay in Los Angeles suggests that a move to Kansas, to which he is now opposed, would create a dangerous situation for the minor, should he attempt to return to Los Angeles on his own.
Finally, we reject mother's contention that the Department failed to make reasonable efforts to prevent or eliminate the need for the minor's removal. (§ 361, subd (d).) The Department provided extensive supportive services to the minor, including placement at a short term rehabilitative therapeutic placement. The Department offered the minor (though he refused) therapeutic services and a psychotropic medication evaluation. The Department's efforts to provide reunification services to mother were substantially hampered by the fact that she resided in Kansas. And mother was not interested in further services. Indeed, she objected to the Department's request that she participate in conjoint therapy with the minor and take parenting classes as part of a reunification plan.
DISPOSITION
The adjudication and disposition orders are affirmed.
WE CONCUR: EDMON, P. J. EGERTON, J.