Opinion
B328349
04-11-2024
In re E.M. et al., Persons Coming Under the Juvenile Court Law. v. M.J. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant M.J. John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant J.M. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Nos. 22LJJP00509 22LJJP00509A-B, Debra L. Gonzales, Judge Pro Tempore Affirmed.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant M.J. John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant J.M.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
COLLINS, J.
Mother M.J. and father J.M. appeal from juvenile court jurisdictional and dispositional orders concerning their children, Et. and Ev. Both parents contend that the jurisdictional findings and removal order were not supported by substantial evidence, and that reasonable efforts to prevent removal were not made. We affirm the orders.
FACTUAL BACKGROUND
I. Family and Referral
Mother and father are the parents of Et., born in July 2021, and Ev., born in September 2022. The family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in late September 2022, after father called the hospital to say he could not make Ev.'s medical appointment because he was high, then showed up "intoxicated on some unknown substance." DCFS spoke to a hospital social worker, who reported that mother and father both appeared intoxicated when they came in with one of the children to add father's name to Ev.'s birth certificate.
Mother and father have four additional children in common, all of whom are older than Et. and Ev. For reasons unclear from the record-parents refused to provide information about these children because "that was in the past and they only want to talk about the present,"-the older children were residing in another state, possibly with maternal grandmother or in foster care.
II. Initial Investigation
On October 4, 2022, a DCFS children's social worker (CSW) made an unannounced visit to the motel room in which the family resided. Father came outside to speak to the CSW; he declined her request to go inside to see mother and the children, explaining that his service dog was very protective and the room was messy due to "work stuff" for the t-shirt business he hoped to start. Father eventually allowed the CSW to view the room from the doorway. She noted that the room was very dark and there was a Great Dane standing on the bed.
Father "became upset" when the CSW explained the referral allegations, which he said were "false" and constituted "harassment." Father said he called the hospital to have mother transported there because he had one drink and was concerned about driving while intoxicated. The CSW observed that father had "circular scabs" on his arms, was very thin, and had several missing teeth. Father attributed the missing teeth to "using in his 20's"; he denied current substance use beyond marijuana and alcohol, which he said he used occasionally and only outside the home. He refused a drug test, stating that he had one drink last night and was "fearful it would be on the test." He also refused to provide much information about the family, which he said had relocated to California from another state about a year earlier. Father "would not discuss where they are originally from," and also refused to disclose the names or locations of the family's other children.
Father brought the children outside individually. He reported that mother did not receive prenatal care when she was pregnant with Ev. because she "doesn't have a birth certificate," but the CSW observed Ev. "to be a normal newborn free from any marks or bruises indicating abuse or neglect." Father told the CSW that Ev. ate special lactose-free formula and had seen his doctors the previous day. Father complained that Ev.'s doctors "basically held mother against her will and discriminated against her due to her speech problems."
When father brought Et. out, the CSW noted he was "crosseyed," "had dominate [sic] blue veins on his forehead and dominant birth marks on his forehead and lip," and "appeared to be balding on one side of his head." Father denied "any concerns regarding child development" and said "there is history with balding" on mother's side of the family. He also stated, however, that the family was awaiting referrals to medical specialists. The CSW did not observe any signs of abuse or neglect on Et. After returning Et. to the room and consulting with mother inside, father brought out formula, diapers, and a portable bassinet to show the CSW. Father then returned to the room, and mother came out to speak to the CSW.
The CSW reviewed the allegations with mother. Mother initially denied any substance use by either parent, but when the CSW told her that father said he used marijuana, mother "then changed her statement to she didn't know when was the last time he smoked." The CSW noted that mother "spoke with an accent with a possible speech lisp," and was also "missing some teeth." Mother denied any concerns about the children and told the CSW the family was "working on getting on their feet" and she was "ready for a 'new start.'" When the CSW "attempted to ask about their other children," mother stated they were with maternal grandmother and refused to provide further information. Mother said she had taken prenatal vitamins during her pregnancy with Ev. but could not get prenatal care because "she doesn't have her birth certificate and the doctor requires a current ID." Mother then went back inside. The CSW ended the interview after father returned and became "argumentative."
After meeting with the family, the CSW initiated a due diligence search to locate maternal grandmother. The search located several possible phone numbers and addresses, but none was a successful match. The CSW also contacted child welfare agencies in Nevada, South Dakota, Alabama, and Mississippi. The family had no child welfare involvement in Nevada or South Dakota, but Alabama responded that mother had been the subject of an "Indicated report of Neglect and Emotional Abuse" by maternal grandmother when she was a young child. Mississippi's response remained pending throughout the proceedings.
The CSW also contacted Valley Oasis, which had been providing the family with housing services, to ask if it had any "concerns for this family." The family's case worker responded that there were concerns of child neglect "due to the physical condition of the father" and his "excuses to avoid me entering the room, seeing their 1 year old, and speaking to his wife." She further stated that the family was "not close" to obtaining more stable housing "due to missing IDs, birth certificates, SS cards, etc.," and had been difficult to communicate with due to their lack of response to phone and email correspondence. The case worker said that she spoke to father the day after the CSW's visit, and "he still seemed upset" and "the whole interaction was a bit off." She also said she had noticed a rash or redness near Et.'s mouth and "very visible" veins on his forehead.
A few days later, the case worker told the CSW that she had visited the family but father had not permitted her to enter their room. She also said that mother "appeared to be under the influence" and "was stumbling and had a difficult time standing"; the family said "they were celebrating someone's birthday." When the CSW contacted the case worker a few weeks later, on November 1, 2022, she stated that her concerns "remain the same" and father "still hasn't allowed me or other case managers to enter the room" despite that being a condition of the agreement to receive housing assistance through Valley Oasis.
On November 1, 2022, the CSW attempted to contact mother and father via phone call and text message; the calls did not connect and the text messages were "not delivered." The CSW successfully connected with a public health nurse, however. The nurse had reviewed the children's medical records, which indicated that Et. had been diagnosed with esotropia, an eye condition; port wine stains; and gastroesophageal reflux disease (GERD). At an appointment on July 18, 2022, Et. was also "slightly behind 1 year milestones, but improved compared to prior." Et. was supposed to have an ophthalmology appointment before that visit to rule out eye lesions related to his port wine stains, but parents had cancelled and not rescheduled it. It was eventually rescheduled for November 30, 2022. Et. also had been scheduled for a brain MRI on August 31, 2022, but did not attend the appointment despite the providers discussing transportation options "at length" at Et.'s previous appointment. The nurse "reported it is concerning that the family has not followed through with [Et.'s] MRI appointment due to port wine stain or the referral for his eyesight." It does not appear that the nurse commented on Ev.'s medical records, which indicated that he had an abbreviated visit on October 3, 2022 "due to parents were late." Ev.'s medical records noted that he also suffered from GERD and parents were paying for his special formula out of pocket because mother "has no ID and is not receiving WIC." The nurse recommended that she and the CSW visit the family jointly and refer the children to the hub medical facility.
On November 15, 2022, the CSW attempted to conduct a home visit but no one answered the door even though the family's cars were in the parking lot and their television was on. The CSW left two business cards and left voicemails with both parents. When father returned the call later that day, the CSW notified him that DCFS had decided to open a family maintenance case "to help support the family" and "ensure the children's medical care is being completed." Father "became upset" and asserted that DCFS was opening a case because he had declined to drug test. Father said the missed MRI appointment "was the medical office's fault" because it "scheduled a time that was different than what the parent's [sic] requested and they could not make the appointment at that time." Father confirmed that parents planned to take Et. to his upcoming medical appointments.
The CSW explained that in a family maintenance case, a social worker would be assigned to their case and visit two times a month to "assist and help the family." Father "strongly denied/wanting needing [sic] help" and asked what the family needed help with.
III. Petition and Detention
Two days later, on November 17, 2022, DCFS filed a "nondetained" dependency petition under Welfare and Institutions Code section 300, subdivision (b). The sole allegation in the petition, b-1, alleged that Et. and Ev. were "at risk of serious physical harm, damage, danger and failure to protect" due to father's "unresolved history of substance abuse" and current use of marijuana and alcohol, as well as mother's failure to protect the children. The initial hearing in the matter was set for December 5, 2022.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On November 18, 2022, the CSW and nurse made a joint unannounced visit to the family "to assess the children and provide some medical education." The CSW knocked on the door four times. Parents' cars were in the parking lot and the CSW heard footsteps and the television, but no one answered. The CSW called both parents' cell phones, but the calls went to voicemail. The CSW did not leave a voicemail, and she and the nurse left without talking to either parent or seeing the children. Neither parent returned the call. After this unsuccessful encounter and a review of the non-detention report summarized above, DCFS concluded there were "several red flags" that merited detention of the children, including "suspected substance use by both parents," "not allowing DCFS/Valley Oasis inside the room after agreeing via signed contract that they would allow access, and the fact that four other children are residing out of state with a relative with no information provided as to why they are not in the parent's [sic] care." DCFS obtained a removal warrant for Et. and Ev. on December 2, 2022.
The last-minute information documenting this visit was omitted from the clerk's transcript. We grant DCFS's motion to augment the record with this document.
At a hearing on December 5, 2022, DCFS asked the juvenile court to detain the children and order monitored visitation for parents and medical referrals for the children. The children's counsel agreed with DCFS's recommendations, citing "real concerns" about parents' failure to answer the door for DCFS when they knew a petition was pending, the children's unaddressed "health problems," and the status of parents' other children. Both parents' counsel argued against detention and asserted that the parents had misunderstood DCFS's expectations and would cooperate going forward.
The juvenile court ordered Et. and Ev. detained. It expressed "great concern" about parents' repeated refusals to allow DCFS to enter the home. It also observed, however, that "maybe reunification can happen fairly soon" given parents' expressed willingness to cooperate and other positive factors, such as father's efforts to start a business and his cognizance of the dangers of impaired driving. The court ordered monitored visits of at least three hours three times per week, with discretion for DCFS to liberalize. It also ordered medical referrals and Regional Center evaluations for the children, with parents to be notified so they could attend the appointments, and low- or nocost service referrals for parents. It set the adjudication hearing for January 19, 2023.
IV. Jurisdiction/Disposition Report
DCFS filed a jurisdiction/disposition report on December 29, 2022. The report included the following information.
A. Children's Status
Et.'s caregiver took the 17-month-old to his MRI appointment on November 23, 2022. The MRI detected "abnormal findings in the supratentorial brain" and recommended that Et. undergo another MRI with contrast and "dedicated seizure protocol" when he turned two. It was also recommended that Et. "make a neuro appointment" to assess the abnormalities. Documentation from the appointment stated that Et. had "port wine stain, estropia [sic], [S]turge [W]eber syndrome and mild developmental delays." Et.'s ophthalmology appointment was rescheduled to January 10, 2023 due to a caregiver scheduling conflict.
Ev. was last seen by his doctor on November 8, 2022, when he was still in parents' care. The medical notes indicated that his ongoing issues included GERD and "housing instability." Ev. was on Pepcid and Nutramigen formula for the GERD and had "good weight gain and symptom improvement." Mother could not bring him to his appointments because she did not have an ID; the notes indicated she "[n]eeds assistance with SS office." Both children were referred for Regional Center assessments in December 2022.
B. Visits
Parents had visits with Et. and Ev. on December 8, 19, 21, and 28. Parents fed, played with, and cared for the children appropriately during the visits. During the December 8 visit, the monitor noted that Et. "was seen walking and having a difficult time balancing." At the outset of the December 19 visit, the children's caregiver told parents that she had changed Ev.'s formula and he was no longer spitting up. Once the caregiver left, parents expressed a "strong concern" that she had changed Ev.'s formula "without consent from the doctor" and asked the monitor to report the matter to the CSW. They also asked the monitor to report that Ev. had on a bib while in his car seat; they considered this unsafe because the bib could have gotten "too tight and caused him to choke while driving without caregiver even knowing." Parents also noticed a "light mark" under Ev.'s eye, and father took photos of it "for their records."
Only mother attended the December 8, 2022 visit because father was ill.
At the December 21, 2022 visit, father commented to the monitor that Et.'s "balance is really good." Father also noted that Et. had two new cowlicks in his hair, and asked mother to "document" them as "abuse," because "not combing his hair is neglect of hygiene." Father told the monitor that the caregiver had been giving Ev. "any kind of formula" and had not been giving him his prescribed medication. After Ev. spit up, father remarked, "this is what happens when you're not drinking the right formula and medication."
During the December 28, 2022 visit, parents noticed a bite mark on Et.'s upper arm. The CSW spoke with the caregiver, who reported that she had not been aware of any bites but her two-year-old son "does have a tendency to bite people." The caregiver subsequently told the CSW that she and her spouse had "concerns" about parents' "constant complaints about the children not being taken care of and always finding something wrong with the kids." She reported that parents were "calling at times they are not supposed to," "always following her to her vehicle during pick up and drop offs," and generally "not really communicating with her well." The caregiver put in a 14-day notice to re-place the children.
C. Interview with Parents
A dependency investigator (DI) interviewed parents about the allegations on December 28, 2022 after their visit with the children. Father said mother could not be interviewed without him or her attorney present, because "he helps her understand things." Father told the DI that "the reports were all lies." He "appeared to dominate the conversation and answered questions that were directed towards the mother," while mother demonstrated "very limited engagement." Mother agreed to call the DI to discuss the case later in the day, but she did not and the DI was unable to reach her. Father also cancelled a meeting due to a scheduling conflict with a "business meeting."
Both parents had been referred for random drug testing. Mother tested negative on December 22, 2022. Father had not completed any tests as of December 29, 2022. DCFS recommended the court sustain the petition and provide parents with reunification services including random drug testing, parenting classes, and individual counseling.
V. Addendum Report
On January 19, 2023, the juvenile court continued the adjudication hearing to February 15, 2023 to enable DCFS to interview parents, who both expressed a desire to be interviewed. The court ordered that the interviews be conducted separately and that father not be present for mother's interview. It ordered DCFS to submit an addendum report documenting the interview and parents' progress with their programs prior to the hearing. It also ordered makeup visitation for parents. DCFS filed the addendum report on February 9, 2023.
A. Children's Status
Both children had a forensic exam on December 30, 2022 due to the bite mark parents observed on Et. during the December 28 visit. The doctor concluded that the mark was consistent with a bite mark from a child. The doctor further concluded that neither Et. nor Ev. had any marks suggestive of physical abuse.
Et. saw the ophthalmologist on January 10, 2023; neither parent attended the appointment. He was diagnosed with anisometropia and astigmatism, and the doctor recommended he get trial glasses for two months and follow up in two months. At his well-child exam the following day, which mother attended, the pediatrician noted that Et. had speech and developmental delays and exhibited behavior consistent with autism. The pediatrician also consulted with a neurologist, who opined that "findings were consistent with Sturge-Weber Syndrome" and recommended that Et. see a neurologist. Neither parent attended Ev.'s appointment on January 18, 2023 due to an unspecified "emergency."
Both children had mental health assessments on January 6, 2023. Parents did not attend because "something came up" with mother's sister. Parents also did not attend a subsequent evaluation on January 18, 2023 due to the "emergency."
In the assessment section of the report, DCFS noted that parents had expressed concerns about Et. and Ev.'s well-being, including the change to Ev.'s formula. It further noted that parents "adamantly disagree" that Et. "may have development disabilities and the recommendation to be assessed for autism." DCFS opined that parents' "disagreement with this professional observation . . . causes concern with their ability to follow through on the children's medical recommendations."
B. Visits
Parents visited Et. and Ev. on January 5, 9, and 30, 2023. They behaved appropriately during the visits and the monitors did not have any concerns. Several scheduled visits did not take place. The January 3, 2023 visit was cancelled due to the children being re-placed, and the January 5, 2023 makeup visit was truncated due to monitor unavailability. Mother called the CSW in advance of the visit scheduled for January 23 to ask about getting a ride; mother "deflected" when the CSW asked why father could not bring her and ultimately cancelled the visit. Parents' January 26, 2023 visit was cancelled due to their failure to confirm the visit with the monitor, and their February 6, 2023 was cancelled because parents were ill.
C. Interviews with Parents
1. Mother
The DI and CSW met with mother on February 6, 2023. Mother's "parent partner" from her counsel's office attended the meeting with her. After the DI reviewed the petition with her, mother said that the allegation was "incorrect" because father only used marijuana for anxiety and ADHD "once in a while" and was "capable to care for his kids." Mother also said that father drank alcohol "every once in awhile [sic]," and had called the ambulance on the day of the referral "just to be safe." Mother mentioned father's previous substance abuse but "did not want to talk about it because it was the past and has nothing to do with what is going on now." Mother stated that she cared for the children when father drank or used marijuana, which father stored in a locked box out of the children's reach.
When asked about the children, mother denied that Et. had any special needs or developmental delays. She reported that he was "very, very smart" and said the doctor suggested he might have cerebral palsy because "[h]e held his head back one time." Mother said that Et. and Ev. were the youngest of her and father's six children in common, but she "said she would rather not answer" questions about the older children's whereabouts because she did not want "it to be held against her." She added that she was "doing what I can to get the kids back," including attending parenting classes and counseling. She did disclose that she believed "they may be in Mississippi." Mother further disclosed that she had a daughter before she met father; that daughter was living in Alabama with maternal grandmother pursuant to a verbal agreement. Mother also said she talked to her sister who lived in Mississippi on the phone every night and considered her a good support system.
Mother did not have any serious physical or mental health diagnoses. She reported that received special education support in school before leaving in the tenth grade. Mother said she can read and write, and she understands court documents "with the help of the father." The DI noted that mother was at times "difficult to understand" due to "a southern accent and possibly a speech delay."
Mother had taken three drug tests, all of which were negative. She had two no-shows that she attributed to illness and a lack of transportation; one makeup test was pending. She enrolled in a 10-week parenting class that began January 25, 2023. Mother also enrolled in individual counseling.
2. Father
The DI interviewed father on February 8, 2023. She noted that he was "engaging but was not forthcoming with information and was focused on addressing what he feels the Department did and is doing wrong." Like mother, he "said his past history and his other children not in his custody have nothing to do with" Et. and Ev., and declined to provide information about where they were or with whom they were living. Father said he talked to the older children on the phone "once in a while."
Father said he had "a heart condition from his ADHD," PTSD, and had suffered a stroke in the past due to stress. Father said he had participated in voluntary outpatient services approximately 10 years earlier to help with his social anxiety. He had never been formally diagnosed with ADHD but participated in therapy when the family lived in Missouri. He had been prescribed medication and tried several types but did not like the way they made him feel. Father smoked marijuana to treat his ADHD.
Father "said there was no clear or concise reason why the Department took the children because they were going to the children's appointments and had housing." Father attributed the detention to a "personal vendetta" by the CSW and threatened to sue DCFS. When asked if he believed Et. had any developmental concerns, father said, "Absolutely not." Father called the doctor at the hub medical facility where the children had been seen since their detention a "quack" who thought Et. had autism "because he held his head back once." Father was also concerned that the doctor changed Ev.'s formula without consulting with his primary care physician; however, he acknowledged that the doctors' facilities were connected and that Ev. was gaining weight. Father said he believed Ev. "might become developmentally delayed because he is being fed wrong."
Father had three positive drug tests for marijuana and two missed tests, which he attributed to lateness and illness. He also had a makeup test pending. Father enrolled in the same 10-week parenting class as mother.
D. Last-Minute Informations
On February 15, 2023, DCFS filed a last-minute information to supplement the addendum report. DCFS reported that the parenting class instructor had called on February 14 to notify the CSW that parents had not been timely submitting their assignments and would be dropped from the class if they did not submit their next assignment. The instructor also added that "she has noticed some resistance" from father about participating in the class, and she had "not seen a shift in parents['] understanding of the class." The instructor asked the CSW if parents had literacy or developmental delays, "as their responses to some of the questions and answers are not coherent." DCFS also reported receiving a message from mother's therapist stating that mother had begun individual therapy. Mother's most recent drug test was negative, and father's was positive for marijuana.
After the court continued the adjudication hearing, DCFS filed a second last-minute information on February 22, 2023. It advised the court that parents had been "dis-enrolled" from their parenting class due to the incomplete class assignments. The instructor again "expressed concern regarding the father and mother's ability to understand the class assignments and materials due to possible cognitive disability." Mother had again tested negative for any substances, and father had again tested positive for marijuana. DCFS advised the court that it planned to file a first amended petition "to address additional concerns regarding the parent's [sic] ability to care for the children's needs."
VI. First Amended Petition
On February 23, 2023, the parties appeared before the juvenile court. Over parents' objections, the court granted DCFS counsel's request to continue the matter so a first amended petition could be filed. The court ordered DCFS to prepare a supplemental report regarding any new allegations.
DCFS filed the first amended petition on March 23, 2023.The first amended petition retained allegation b-1 relating to father's substance abuse and mother's failure to protect. It also added two additional allegations under section 300, subdivision (b). Count b-2 alleged that father "lacks sufficient ability and knowledge to provide adequate care to the child Et[.] and his special needs. Et[.] has characteristic of Surge Weber [sic] that includes vascular concerns, ophthalmology concerns, neurological concerns and developmental concerns. The father failed to take Et[.] to his MRI appointment on 08/31/2022 and failed to take Et[.] to other specialty appointments as recommended by the child's primary care physician. The father failed to acknowledge the child, Et[.]'s special needs including concerns of developmental delay despite medical professional opinion and declined services, such as Regional Center that would help assist with Et[.]'s developmental progress. Furthermore, the father has not been cooperative with services designed to assist with aiding his ability to better understand the needs of the children, such as, consistently attending the children's medical appointments, participation in the MAT Assessment and participation in Child Family Team meetings. The father failed to adequately utilize services designed to assist with any parenting deficits, such as Valley Oasis, [parenting classes,] and other services offered by the Department. Additionally, the father suffers from ADHD and declined mental health services. The children . . . are such a young age to require constant care and supervision and the father's failure to provide adequate care endangers the children's physical health and safety and places the children at substantial risk of serious physical harm, damage, danger."
The initial petition was dismissed on March 24, 2023.
Count b-3 was largely identical, but concerned mother's ability to care for Et. It added that mother "failed to get an appropriate form of identification[, which] prevented her from adequately receiving services to address parenting deficits such as, stable housing, getting prenatal care when she was pregnant with Ev[.] and is unable to take the children to their medical appointments."
VII. Additional Reports
A. MAT Report
On March 23, 2023, DCFS filed a "Multidisciplinary Assessment Team Summary of Findings Report" (MAT report). The MAT report noted that both parents refused to participate in the assessment without their attorneys present.
The MAT staff assessed Et. on January 6, 2023. The assessor observed that Et. had crossed eyes and two port wine stains on his face. He was wearing the glasses he had been prescribed. The assessor determined that Et. was not meeting communication milestones and was just over the cutoffs for fine motor and problem-solving skills. The assessor concluded Et. was "in the monitor range of scores indicating that social emotional development may not be on track" and recommended he be assessed by the Regional Center "to rule out autism." Et.'s new caregiver reported that Et., who was then 18 months old, was not yet talking, tilted his head to the side "constantly," and moved his hands. The caregiver "shared concern regarding Et[.]'s medical problems and him being on the spectrum." In a January 18, 2023 follow-up call, the caregiver reported that Et. had learned to say "hi" and rolled his eyes when he was told no.
The MAT staff also assessed Ev. on January 6, 2023. The assessor concluded Ev. was also in the "monitor" range for social emotional development; he did not meet the fine motor milestone and was at the cutoff on the problem-solving milestone. The children's caregiver reported that Ev. continually wanted to eat but spit up a lot and was fussy. During the follow up call on January 18, 2023, the caregiver reported that Ev. "continues to cry excessively for the bottle, wants to overeat, gets upset easily, will get mad, scratches himself if he doesn't get more formula." The caregiver further reported that Ev. "had a change in milk due to concerns about spitting up and poor weight gain," and had been spitting up less.
B. Supplemental Report
DCFS filed a supplemental report on March 23, 2023. It reported that both children had been assessed by the Regional Center and were eligible to participate in the Early Start program as of March 1, 2023.
1. Interview with Parents
The DI spoke with mother and father together by phone on March 21, 2023. The DI noted that father "was the primary talker," though both parents were "friendly" and provided statements. After the DI reviewed count b-2 with parents, father said, "none of that happened," and denied missing any medical appointments. Father blamed missed medical appointments on the medical facilities and DCFS. Mother said that parents always called and rescheduled missed appointments.
When asked about the children's developmental delays, father denied they had any and said that Et. "never went to the Regional Center." Father said any delays were "due to him being in foster care" and "only happened after CPS took them." Father said the caregivers were not working on Et.'s verbal skills or Ev.'s motor skills. He added that Ev. was "neglected because he's not on the formula he is supposed to be on and they are not acknowledging he has G[ERD] and still spitting up. If you talk to his doctor they would say he needs his special formula, Nutramigen. We were on top of all their medical needs." Father said parents did not attend meetings about the children because they wanted their attorneys present "but DCFS never made that happen."
Father said the allegations about not utilizing resources were "bogus," and he and mother "were never given resources despite them asking for them." Father said he and mother had enrolled in a new parenting class. He opined that mother "doesn't need counseling just because you think she is stupid. You're not a mental health specialist." Father made a similar comment when asked about his own health. He stated that his PTSD "doesn't mean I can't take care of my children," and said he had been addressing his ADHD using breathing techniques. Father also said he went to a clinic and they told him he was "not a good fit" for group therapy and needed one-on-one treatment, but he had not found a provider yet. Mother added that she had "a problem with you all calling me stupid." Mother acknowledged the DI had not used that word, but said "they are implying that she is." Mother said she received supportive services during school but was not stupid and was able to care for her children.
The DI also reviewed count b-3. Father said "he already addressed that first part" about Et.'s medical needs and appointments. Mother said she had been working with Valley Oasis to get an ID, but she could not get one because she did not have her birth certificate. She asked her sister to help but "her sister can't because she lives in Mississippi and the mother was born in Alabama." Father denied refusing services or doing anything "out of line" with Valley Oasis. He stated that he had showed the Valley Oasis caseworker the report, and she "was shocked the report said she said that." Mother reiterated that she was able to care for the children and said the visitation monitor and her sister would be able to confirm that. Both parents refused to talk about their older children, stating that "those children have nothing to do with this current case and that was in the past and they only want to talk about the present."
Mother's individual therapy was terminated due to four noshows or cancellations. She was provided with referrals to other services. Mother had one additional negative drug test, one noshow, and one where she was unable to provide a sample. Father had one positive test for marijuana.
2. Interview with Maternal Aunt
The DI spoke to maternal aunt by phone on March 20, 2023. Maternal aunt said she lived in Mississippi but had spent four months with the family in 2021. She said mother and father were great parents. Maternal aunt said she did not know much about the older children. "[L]ast she heard they were in foster care" in Mississippi, because neither she nor maternal grandmother could take them. Maternal aunt said she did not know why the children were in foster care "because she was kept out of the loop."
Maternal aunt was not aware of any substance abuse by parents. She had concerns for Et. due to his eyes and birthmarks. She said parents had made appointments for him but had to reschedule due to no fault of their own.
3. Interview with Supervising Physician
On March 17, 2023, the DI spoke with Dr. S., MD, the supervisor at the pediatric clinic where the children were patients. Dr. S. reported that she and Et.'s primary care physician were concerned "about the parents['] follow through with getting Et[.] to his appointments." Dr. S. said parents did not bring Et. to two or three scheduled imaging appointments. She stated that they "always had an excuse, but it soon became clear . . . that they just didn't want to go to the appointments." Dr. S. further reported that Et.'s primary care physician tried to get Et. linked to services with specialists "and the family would not go, which would delay care because it is difficult to schedule appointments with specialized services." Dr. S. stated that the missed appointments were not hurting Et. "in the moment," but delaying services "could hurt him in the future because of the delay of knowing what his needs are."
Dr. S. said that Et. "has a collection of blood vessels in certain areas of concern and he will need to see specialists in the future." Et. had not been officially diagnosed with Sturge Weber Syndrome because "there needs to be a consensus between multiple experts," but he had characteristics suggestive of the disorder, which can cause seizures and may require surgery to remove misdirected blood vessels. Et. also had "issues with his eyes," which "don't move in a coordinated way" and needed to be strengthened or possibly surgically corrected. Et.'s eye issues also affected his vision, which "requires appointments with ophthalmology." Additionally, Et. experienced developmental delays. Dr. S. said it was important for Et.'s caregivers "to attend all appointments and to understand his medical needs so he can get the appropriate treatment." Neither mother nor father had attended his two most recent appointments.
Dr. S. said she treated Ev. at his newborn checkup, for which he and mother arrived without an appointment. Mother also did not have any ID, but the clinic saw Ev. anyway "because he was a newborn." Dr. S. said it was "concerning" that mother "opted not to get an ID and thus couldn't get appropriate medical care for herself and the children," including prenatal care for Ev. Dr. S. also expressed concern that "there may be a possible delay with the mother," "not because of her accent" but because of her inability to provide details about Ev.'s delivery; she also noted that "it could have been that the mother was hiding information." Ev. was placed on Nutramigen formula when he was in parents' care due to his colic and spit-ups, but he was "transitioned off" because he was still colicky. His current doctor changed his formula to a different brand and he was doing well on it and gaining weight. Dr. S. noted that Ev. also "has a flat head, is delayed in his milestones and has tight upper muscles which is abnormal and indicates developmental issues and needs Regional Center involvement for occupational therapy."
4. Assessment and Recommendation
DCFS recommended that the court sustain all three allegations in the first amended petition. It asserted that parents "failed to acknowledge the children's special needs and deny the children have any developmental delays," "continue to focus blame on other people for the children's developmental delays," and "are not open to listen [sic] to the medical professionals to get the most updated information about the children's needs." It noted that parents only signed referral forms for the Regional Center under court order and were not "cooperative with receiving services for the children, such as attending the children's medical appointments, participating in the MAT Assessment, CFTs, or willing to team with these professionals to understand the children's needs better." DCFS also expressed continued concern "regarding the father's substance use."
VIII. Adjudication Hearing
The juvenile court held the adjudication hearing on March 30, 2023. It admitted all DCFS reports into evidence and took judicial notice of its prior findings and orders. After hearing lengthy arguments from all counsel, the court made two amendments to the b-2 and b-3 allegations: it corrected the misspelling of "Sturge Weber" and deleted the language referring to Valley Oasis. It then sustained those counts as amended. The court dismissed the b-1 allegation regarding substance abuse after finding it was not supported by sufficient evidence.
After hearing additional arguments regarding disposition, the court declared the children dependents of the court. It found by clear and convincing evidence that there was a substantial danger to the children's well-being if they were returned home, and that there were no reasonable means that could ensure their protection without removing them from parents' custody. The court stated that parents' counsel "made compelling arguments" that DCFS had not made reasonable efforts to prevent removal, but it disagreed. It stated that it had "read these reports quite carefully" and "whenever the Department has tried to give services to the parents, in particular the father, has been very, very resistant to the help from the very beginning, stating the family did not need any help, and, unfortunately, that has continued." It further found that Et.'s medical condition was "quite serious," and expressed "great concern with regard to medical services not being provided to Et[.] and also Ev[.]." It added, "I don't feel it is speculation. I think it is based on the parents' resistance up until this point, which I hope will change, and I do understand that, at least from your counsels' arguments, that perhaps there is a distrust of the system. That's understandable." The court also noted that it "appreciate[d]" parents' appropriate conduct during visits and stated, "I don't think that is a concern. It really is the medical situation." The court ordered the children removed and ordered reunification services for both parents.
Parents timely appealed.
DISCUSSION
I. Jurisdiction
A. Legal Principles
Section 300, subdivision (b) provides in pertinent part that a child may be declared a dependent of the juvenile court if "[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 "[t]he failure or inability of the child's parent . . . to adequately supervise or protect the child," the "willful or negligent failure . . . to provide the child with adequate . . . medical treatment," or the "inability . . . to provide regular care for the child due to the parent's . . . mental illness, developmental disability, or substance abuse." (§ 300, subds. (b)(1)(A), (C), (D).) Before a court may assert jurisdiction over a child, DCFS must prove three elements by a preponderance of the evidence: (1) the parent'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 L.W. (2019) 32 Cal.App.5th 840, 848.)
Although section 300 requires proof a child is subject to the defined risk of harm at the time of the jurisdiction hearing (In re D.L. (2018) 22 Cal.App.5th 1142, 1146), the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re I.J. (2013) 56 Cal.4th 766, 773; In re N.M. (2011) 197 Cal.App.4th 159, 165.) The court may consider past events in determining whether a child currently needs the court's protection. (In re N.M., supra, 197 Cal.App.4th at p. 165.) "Evidence of past conduct may be probative of current conditions, and may assist DCFS in meeting" its burden of proof. (In re J.N. (2021) 62 Cal.App.5th 767, 775.)
"'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we 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." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.'"" (In re I.J., supra, 56 Cal.4th at p. 773.) We review the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence such that a reasonable trier of fact could find that the order is appropriate. (Ibid.)
B. Analysis
Mother contends the juvenile court's jurisdictional findings are not supported by substantial evidence. She argues that parents' actions or inaction did not create a risk of serious physical harm or illness to either child. Regarding Et., she contends DCFS's stated concerns were "based on potential diagnoses and possible future needs" and therefore were "markedly speculative." Regarding Ev., mother argues that Ev.'s developmental concerns were minor and there was no evidence that she was incapable of using the correct formula or engaging Ev. in age-appropriate activities. Father joins these jurisdictional arguments and does not make any additional arguments.
Substantial evidence supports the juvenile court's jurisdictional findings. Despite repeated findings by multiple professionals, neither parent acknowledged that Et. and Ev. had developmental delays or that Et. in particular needed specialized care. Father said that Et. "absolutely" did not have any developmental delays and blamed the children's caregivers for any issues the children had. Mother denied that Et. had any special needs despite his readily apparent crossed eyes and port wine stains, and said he could not have developmental delays because he was "very, very smart." When the children were in their custody, parents repeatedly cancelled Et.'s appointments with specialists; when the children were in the care of DCFS, parents did not attend their medical appointments, mental health evaluations, or MAT assessment. Parents instead focused their concern on minor issues, such Ev. wearing a bib in his car seat and Et. having cowlicks in his hair.
Parents' ongoing refusal or inability to acknowledge the children's medical needs poses a substantial risk of significant harm. "One cannot correct a problem one fails to acknowledge" (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197), and both parents failed to acknowledge that early and consistent medical intervention was necessary for the children, particularly Et., whose constellation of conditions could lead to seizures and other serious problems if not monitored and appropriately treated. Mother asserts that these concerns were "speculative" and not ripe "at the time of the jurisdiction hearing," but without acknowledgment of the underlying symptoms or proper assessment, Et. was at risk of physical harm. The juvenile court did not have to wait until Et. actually developed seizures or irreversible vision problems or Ev. became further delayed to take steps necessary to protect them. (In re I.J., supra, 56 Cal.4th at p. 773.)
"[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision." (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) The court was entitled to give it great weight. In addition to denying that the children had special medical needs or developmental delays, parents refused any assistance from the outset of the case, including assistance for mother in getting an ID so she could accompany the children to their medical appointments or enroll in services such as WIC. Parents were also evasive about their older children and either refused or were unable to participate appropriately in parenting classes to help them improve their caregiving skills. The court did not err in taking jurisdiction over the children pursuant to section 300, subdivision (b).
II. Removal
A. Legal Principles
"'At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child's physical health without removing the child.'" (In re D.P. (2020) 44 Cal.App.5th 1058, 1065; see also § 361, subd. (c)(1).) The court must determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and "shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).)
In determining whether to remove a child from parental custody, "the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re D.B. (2018) 26 Cal.App.5th 320, 332.) The court "must also consider whether there are any reasonable protective measures and services that can be implemented to prevent the child's removal from the parent's physical custody." (Ibid.) "A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains 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; accord, In re D.B., supra, 26 Cal.App.5th at p. 328.)
We review the disposition order for substantial evidence, bearing in mind that because section 361 requires clear and convincing evidence, the record must contain substantial evidence "from which a reasonable trier of fact could find the existence of that fact to be highly probable." (In re V.L. (2020) 54 Cal.App.5th 147, 149.) We view the record in the light most favorable to the judgment and accord deference to the juvenile court's credibility determinations, reasonable inferences, and resolution of evidentiary conflicts. (See id. at p. 155, quoting Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
B. Analysis
Mother contends that substantial evidence does not support a finding that she was "resistant" to either child receiving medical treatment, and "resistance" is an insufficient basis for removal in any event. Mother further argues that substantial evidence does not support the finding that DCFS made reasonable efforts to prevent or eliminate the need for removal. Father joins mother's arguments and does not make any additional arguments pertaining to removal of the children from his custody.
Substantial evidence supports the juvenile court's findings that the children would remain at risk if returned to parents' custody and there were no reasonable means to resolve the risk. The same evidence that supported the juvenile court's jurisdictional findings also supported its removal order. Parents denied the children had developmental delays or special medical needs and did not attend their appointments, both before and after DCFS became involved with the family. The "resistance" to which the court referred was not akin to the inability to get along with social workers found insufficient to support removal in In re Ma. V. (2021) 64 Cal.App.5th 11, 25. Rather, the court's concern was parents' resistance to acknowledging and addressing the children's medical needs, and other related issues such as mother's ongoing failure to obtain appropriate identification.
Substantial evidence also supports the juvenile court's finding that DCFS made reasonable efforts to prevent removal. DCFS attempted to initiate a family maintenance case without detaining the children, but parents declined to participate. Parents were advised of the children's medical needs and developmental delays but continually denied them. They were notified of the children's medical and other appointments while the children were in DCFS custody and did not attend them. DCFS provided parents with low- or no-cost referrals for services, but parents were "dis-enrolled" from their parenting class due to their failure or inability to participate. Mother's counseling was discontinued because she did not attend multiple sessions, and she did not take advantage of offers to assist her with obtaining an ID so she could take the children to their appointments.
Mother asserts that no efforts were made "to ensure the children attend medical appointments while in the care of the parents, such as gas cards, bus passes, a parent partner, or other assistance in keeping the appointments." The record does not support this assertion. Prior to filing the initial petition, DCFS offered to assist the family "with housing, transportation, mother obtaining identification cards, and linkage with WIC." Father rejected the offer, expressly stating that he did not want DCFS assistance of any kind. The record also reflects that Et.'s doctors discussed transportation options with parents "at length" before scheduling his MRI appointment, which parents then cancelled, and that mother "deflected" when a CSW suggested father could transport her to a visit. Substantial evidence supported removal.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: CURREY, P. J., ZUKIN, J.