Opinion
B324884
06-14-2023
In re Z.B., a Person Coming Under the Juvenile Court Law. v. STEFANIE B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 22LJJP00177, Donald A. Buddle, Jr., Judge. Affirmed.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
Stefanie B. (mother) appeals from a dispositional order removing her teenage son, Z.B. (born May 2007), from her custody. Mother argues that substantial evidence does not support the juvenile court's findings that Z.B. would be at substantial risk of harm if placed in her custody and that there were no reasonable means of protecting the child short of his removal.
We find that the evidence supports the juvenile court's findings, therefore we affirm the dispositional order.
COMBINED FACTUAL AND PROCEDURAL BACKGROUND
Referral and initial investigation
In May 2022, the Los Angeles County Department of Children and Family Services (DCFS) received a referral reporting that Z.B. was at the sheriff's station and refusing to go home with mother. A sheriff's deputy reported responding to a 911 call at an apartment complex in the City of Palmdale. Z.B. reported that mother and mother's male friend hit him. Mother told law enforcement that Z.B. had gone to a friend's house after school instead of going home as required. Mother asked the deputy to force the child into her car, but the deputy refused and, instead, took the child to the station and called DCFS.
In a private interview on May 6, 2022, Z.B. reported that before the end of the school day he had called his mother and asked if he could go to a friend's house after school. Mother agreed and asked which friend he was going to visit. Z.B. informed mother where he would be, and once he arrived at the friend's home mother called and asked for the Internet box hotspot so that she could use the Internet. Mother then went to the apartment complex where Z.B.'s friend lived, and mother's friend Keith I. got out of the car and aggressively approached Z.B., asking for Z.B.'s cellphone and the hotspot. Z.B. was unwilling to turn over the cellphone. Keith I. grabbed the cellphone from Z.B.'s hand, and Z.B. struggled to retrieve it. Z.B. reported that Keith I. then began to "sock him in his chest" and arms repeatedly. Keith I. then picked up Z.B. and slammed his body to the concrete ground. Keith I. placed his knees on top of Z.B.'s body in an attempt to hold him down. Mother, who was yelling, began using her hands to slap Z.B. repeatedly. Z.B. yelled for help and 911 was called. Z.B. reported that mother was present while Keith I. was hitting him and slammed him to the ground and that Keith I. took both the cellphone and the hotspot and left. Z.B. reported being sore in various places on his body, but the social worker observed no marks or bruises.
Z.B. reported that he and mother had been living in a homeless shelter with other families, where Z.B. was uncomfortable. Z.B. blamed his mother for losing their apartment due to mother having arguments with many people in the apartment complex and having engaged in a fight with one neighbor. Because of the fight, they were asked to move out. Z.B. reported that mother continued to get in arguments with others at the shelter, although there had been no fights. Z.B. also reported that mother is mentally ill, having been diagnosed with bipolar disorder, and was supposed to take medication, which she fails to do, saying, "that she is not going to take the medication because she does not need it." Z.B. said he is left to deal with her mood swings and her being up all night. Z.B. stated the stress causes him to run away and not want to return home.
Z.B. reported no contact with his father, that he has never seen his father, and he had no extended family to rely on for support.
Z.B.'s alleged father, Charles P., has no relationship with Z.B. and is not a party to this appeal.
On May 7, 2022, the social worker arrived at the shelter where mother and Z.B. had been staying, looking for mother, who had not returned any calls. Mother was not there and her whereabouts were unknown. The social worker spoke with the family's counselor at the shelter, who reported that mother and Z.B. had not lived there for long. The counselor was limited in what she could discuss with the social worker but reported being concerned about mother's mental health and mother's failure to take her medication. Other residents in the shelter had complained about mother's behavior. During the night when others were sleeping, mother was up playing music, cleaning, or talking on the phone. Mother did not stop this behavior even after it was discussed with her. The counselor confirmed that mother had a mental health diagnosis and refused to take her medication when it was suggested that she do so. Z.B. had jumped the fence and left the shelter on three previous occasions due to his frustration with mother. The counselor reported that Z.B. appeared depressed.
While living in the shelter, the counselor continuously told mother to enroll Z.B. in a school walking distance from the shelter. Mother never did so, and the counselor ended up completing all of the paperwork. Mother was unemployed, and the counselor had been working with mother on applying for social security benefits and housing.
The social worker later made telephone contact with mother, who reported having behavioral issues with Z.B., including truancy. Mother reported that on May 6, 2022, she had received a call from a truancy officer. After that mother told Z.B. that he could not go to his friend's house.
Mother found Z.B. because she tracked his cell phone. Mother called Keith I. to pick her up and drive her to Z.B.'s friend's home. Mother admitted Keith I. hit her son with his fist, but denied that Keith I. slammed Z.B. to the ground. Mother admitted she slapped Z.B. on the face and stated it was the first time Keith I. hit her son and was the first time she used physical discipline with her child. Mother was aware of her son's complaint about living in the shelter. She claimed no extended family and had been raised in foster care with DCFS since the age of two. Mother was never adopted nor the subject of a legal guardianship. She aged out of DCFS services and has struggled ever since. Though unemployed, mother was looking for work.
Mother referred to Keith I. as her "brother" although it appears he is not her biological brother.
Mother admitted having a mental health diagnosis and a prescription for medication, but was not willing to disclose the diagnosis or medication. She does not feel the need for or take medication. Mother was willing to undertake parent education to learn how to parent a teenager.
Residents of the shelter reported that on May 5, 2022, Z.B. arrived from school nervous and scared because mother had not picked him up at school as planned. Z.B. paced the floor for hours as he continuously called mother, who arrived home around 9:00 p.m. without any concern about her son's worries. Mother and Z.B. then fought and argued.
Z.B. underwent a forensic medical examination resulting in a conclusion of "suspicious for physical abuse." The evaluation report noted that Z.B. had tenderness to pressure on the back of his neck, a purplish faint bruise and mild swelling and tenderness to the left forearm, and redness with tenderness to pressure on the left lateral torso. Z.B. disclosed that mother had punched him in the past and hit him with a belt a long time ago. The evaluator recommended a medical exam and mental health evaluation as soon as possible.
Section 300 petition and detention
On May 10, 2022, DCFS filed a petition pursuant to Welfare and Institutions Code section 300 on behalf of Z.B.,alleging that mother physically abused the child; that mother had mental and emotional problems that rendered her incapable of providing care for the child; and that mother failed to protect the child from her male companion, who physically abused the child.
All further unattributed statutory references are to the Welfare and Institutions Code unless otherwise noted.
At the May 11, 2022 detention hearing, the juvenile court ordered Z.B. detained from parental custody and scheduled a jurisdictional hearing. The court ordered supervised visitation for mother. Minor's attorney noted that Z.B. was concerned for mother's well-being but unwilling to return to mother's care.
Jurisdiction/disposition report
DCFS's June 17, 2022 jurisdiction report noted Z.B. had been placed in a foster home. Also Z.B. confirmed the details of the petition, adding that mother had told him she was bipolar. Z.B. stated mother had drastic mood swings every day, and, when she was angry, she "throws glass" that he usually dodged, but once he did get a cut when mother threw glass, and it landed on the floor and broke near his foot. Z.B. stated the recent incident was not the first time he had called the police due to mother's behavior. In April 2021, the two had an altercation, and mother tried to put Z.B. out of their home. The two struggled over a bag, and mother threw a phone hitting Z.B. in the nose, causing him to bleed. Mother then pushed Z.B. on the bed and started hitting and yelling at him. The minor also described an incident in which mother got in a fight at their previous apartment complex, resulting in them being forced to move out of the complex. Z.B. also reported that mother's past relationships had been violent. Z.B. denied mother used any substances, including marijuana or alcohol.
Z.B. reported being happy in his current foster placement and school.
In an interview for the jurisdiction/disposition report, mother denied slapping Z.B. on the face during the incident, but acknowledged having slapped him on both arms with an open hand. Mother admitted not knowing how to direct her anger.
Concerning her mental health, mother stated that she was not bipolar. She also denied taking medication. Mother was prescribed medication for diabetes, however, she did not take it because it made her sick. Mother claimed that Z.B. knew how to give her insulin and how to check her blood sugar. In the past, mother had been diagnosed with "depression, ADHD, [and] dissociative personality disorder," but was never prescribed any medication. Mother could not recall the time frame of these diagnoses, however, she recalled having a mental health evaluation in May 2022 with the Department of Mental Health and claimed not to have been diagnosed with any issues or prescribed any medication. She denied telling Z.B. that she was bipolar, but admitted to having drastic mood swings, stating that she goes from "0 to a 100 real quick."
Regarding her failure to protect Z.B. from Keith I.'s abuse, mother confirmed that Keith I. hit the child with a closed fist but denied the blow was to the chest, claiming "his arms were mainly getting hit." She stated that Keith I. picked up the minor to slam him, but refrained from doing so when mother protested, instead putting him down gently. Mother denied Keith I. put his knee on top of the child to hold him down. Mother said Keith I. had to discipline Z.B. in the past. He had yelled and threatened Z.B., but mother had never witnessed Keith I. hit the child prior to the recent incident.
Mother described an incident when Z.B. was disrespectful and shoved her, prompting her to shove him back. Mother explained Z.B. is bigger than she, and she "felt like he was going to beat on me so I went to attack mode and started smacking him." Mother said when Z.B. continued to be disrespectful and kicked her in the face, she threw her phone, which hit Z.B. in the face.
Mother admitted she and Z.B. were "kicked out" of their previous apartment after mother "got into an altercation." Mother explained that she "got drunk" and "saw a situation happening and I wasn't minding my business." Mother claimed to have completed an anger management course in 2021. Since the incident two years prior to the interview, she and Z.B. had a hard time finding a residence. She had been living with friends, in a car, or at the shelter. Mother denied getting into arguments at the shelter.
Mother spoke highly of Z.B., stating he was a good, kind, caring kid, who knew how to "cook, clean," and "fill out a money order to pay rent." Mother stated her son "was [her] best friend," and she "didn't know he was holding a grudge because we lost our home." During the interview, mother appeared "coherent, social, and forthcoming with information and maintained regular/consistent eye contact."
Mother wanted to clarify information she provided to the dependency investigator about the incident, stating Keith I. confirmed he did put his knee on Z.B.'s chest. Mother did not remember seeing Keith I. put his knee on Z.B.'s chest and demonstrated what she recalled seeing, which was Keith I. holding Z.B. down with his hands. Mother denied a diagnosis of schizophrenia, but acknowledged she had been diagnosed with dissociative personality disorder. Mother started attending individual counseling, and she would be attending her second session on the day of the interview.
Candis, identified as mother's best friend, was also interviewed. She confirmed that during the incident with Keith I. Z.B. was hit with a closed fist on his sides and possibly his leg, and Keith I. wrestled Z.B. to the ground. Candis observed mother attempting to hit Z.B. with an open hand that Z.B. blocked. Candis admitted mother "does throw things when she is upset, but not towards [Z.B.]."
Keith I. denied having grabbed the cell phone from Z.B. and reported Z.B. got "mouthy" and tried to swing at him, which was how it started. Keith I. admitted having hit Z.B. with a closed fist but stated he was not trying to hurt him, just "rough[] him up." Keith I. denied mother used any drugs and that mother had any mental health concerns.
Z.B.'s godmother, Princess D., was also present at the time of the incident at the apartment complex. She reported having seen Z.B. at the complex and tried to make conversation until mother arrived. Z.B. informed her he had just come from school and did not want to stay there. He handed Princess D. the modem for the hotspot and left. When he saw Keith I., Candis, and mother, Z.B. started running. Keith I. chased him and "snatched" the cell phone. Z.B. took a swing at Keith I., who told Z.B., "if you swing at me, I'll swing back." Princess D. said Z.B. was "[a]cting dramatic," yelling they were trying to kidnap him. Princess D. reported to have not seen either Keith I. or mother put their hands on Z.B. When asked about mother's mental health, Princess D. stated, "I know she was diagnosed as schizophrenic, but that doesn't stop her from parenting." Princess D. denied knowing what medication mother was taking but was aware that mother was diabetic. Princess D. denied mother used any substances other than cigarettes.
On June 9, 2022, the dependency investigator overheard a telephone call between mother and Z.B. during which Z.B. told mother he did not want her to call him again, and he did not want to talk to her. Z.B. told the dependency investigator he did not want in-person visits with mother.
DCFS expressed concern regarding mother's lack of skills to discipline Z.B. effectively. In addition, mother's disclosure of going from "0 to a 100 real quick," throwing things when angry, and getting involved in an altercation that caused her to lose her home, raised concern about possible unaddressed mental health problems. DCFS recommended the juvenile court sustain the petition, declare Z.B. a dependent of the juvenile court, and order monitored visits between mother and Z.B. with DCFS discretion to liberalize.
Adjudication and disposition
On August 22, 2022, the juvenile court adjudicated the section 300 petition. Mother did not appear for the hearing, and the court found notice proper. The court sustained the section 300 petition and the matter was continued for disposition.
The dispositional proceedings took place on September 28, 2022. Mother was present and represented by counsel. Mother's counsel advocated for return of Z.B. to mother's custody, arguing that mother had been attending parenting classes and counseling and that Z.B. would not be in danger in mother's custody.
DCFS responded, noting that mother had not taken responsibility for her actions, there was no evidence of her receiving mental health treatment, and recommended that mother undergo a mental health assessment pursuant to Evidence Code section 730. Z.B.'s attorney joined with DCFS's recommendations.
The juvenile court declared the minor a dependent of the court, noting mother was enrolled in parenting classes but that she was at the beginning stages of treatment. Based on the court's findings and DCFS's arguments, the juvenile court found continuance of the minor in the custody of mother was contrary to the child's welfare, and there were no reasonable means by which the child's physical health could be protected without removal. The court ordered the minor placed under the supervision of DCFS and ordered family reunification services for mother.
Mother's family reunification services included individual counseling, parenting instruction, and a mental health examination pursuant to Evidence Code section 730. Mother was permitted monitored visitation.
Mother appealed from the judgment and dispositional orders on October 14, 2022.
DISCUSSION
Mother challenges the dispositional order removing Z.B. from her custody. As set forth below, we find the juvenile court's findings were sufficient and the evidence supported the juvenile court's dispositional order.
I. Applicable law and standard of review
Section 361, subdivision (c)(1) permits the juvenile court to remove a child from the physical custody of his parents if the court finds by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody."
"In determining whether a child may be safely maintained in the parent's physical 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.)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) In conducting our review, we must "view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Id. at pp. 1011-1012.)
II. Substantial evidence supported the juvenile court's determination that there existed a substantial danger to Z.B. if returned to mother's custody
Mother does not dispute the juvenile court's finding that she physically abused Z.B. and allowed Keith I. to physically abuse Z.B. Instead, she challenges the juvenile court's finding that Z.B. would be at substantial risk of harm if returned to her custody.
Mother argues that "even a finding that a parent directly harmed a child through 'abuse cannot alone provide the clear and convincing evidence necessary to justify removing a child.'" (In re M.V. (2022) 78 Cal.App.5th 944, 967.) Mother emphasizes that "'the strong countervailing interests unique to the status of parent must still be considered.'" (Ibid., citing In re Kieshia E. (1993) 6 Cal.4th 68, 77.) Mother asserts that she was "coherent, social, and forthcoming with information and maintained regular/consistent eye contact." Mother points out that various other testimony in the case confirmed that she did not have mental health concerns. Mother quotes the testimony of Z.B., who stated, "there was never a problem with how she took care of me, it's how she reacts towards me. I love her and she's my best friend, but she needs mental help. I want her to get help. As of right now, I don't want to go back to her. I eventually want to, but not now." Mother maintains this testimony shows that Z.B. was not afraid of mother.
Despite Z.B's testimony, substantial evidence existed in the record to support the juvenile court's determination that Z.B. would be at substantial risk of harm if returned to mother's custody. There was ample evidence that mother had unresolved mental health issues. Both Z.B. and mother's counselor at the shelter expressed concern that mother suffered from mental health issues and did not take her medication to treat these issues. Mother's unresolved mental health issues caused the minor stress, as he had to continually ask mother to take her medication and deal with her severe mood swings. The minor reported that mother got in arguments with others and stayed up all night, causing him to lose sleep. The stress of the situation caused Z.B. to run away. Z.B. did not want to talk to mother or return to her care.
The evidence showed that Z.B. was at risk of harm from mother's unresolved mental health issues. The family's counselor at the shelter stated that Z.B. appeared depressed and confirmed he had jumped the fence and left the shelter on three previous occasions due to his frustration with mother. Z.B. had disclosed to the counselor that he felt stress from living with mother. This evidence supported a finding that mother's unaddressed mental health issues put Z.B. at risk of both physical and emotional harm.
The evidence also supported a finding that Z.B. was at risk of harm from physical abuse if left in mother's custody. Mother admitted when she and Keith I. went to the home of Z.B.'s friend on the day of the incident, she slapped Z.B. with her hands while Keith I. punched Z.B. with his fist. Mother acknowledged that Keith I. put his knee on Z.B.'s chest to hold him down.
Further, there was evidence the incident that led to the referral in this case was not the only incident of physical abuse that Z.B. had endured. Mother acknowledged an earlier incident when Z.B. shoved her and she shoved him back. Mother admitted she "went [into] attack mode and started smacking him." Mother also admitted to throwing her phone and hitting the child in the face. Z.B. also reported being hit by mother in the past, including with a belt. These incidents, which mother does not contest, support the juvenile court's finding that Z.B. would be at substantial risk of harm if left in mother's custody.
Mother cites In re Jamie M. (1982) 134 Cal.App.3d 530, 540, overruled on other grounds in In re Richard S. (1991) 54 Cal.3d 857, 866, fn. 5, for the proposition that harm to a child cannot be presumed from the mere fact of a parent's mental illness. As set forth above, mother's mental illness was not the only reason that Z.B. was removed from her care. Z.B. was also repeatedly subjected to physical violence.
There was no evidence that mother had resolved the issues leading to the physical abuse. While mother had started attending parenting classes and counseling, there was no evidence that she had made substantial progress in her treatment. The juvenile court did not err in determining that Z.B. remained at risk of harm if left in her custody.
III. Substantial evidence supported the juvenile court's determination that there were no reasonable means to protect the minor without removal
Section 361, subdivision (c)(1) requires clear and convincing evidence that there are "no reasonable means" of protecting the child without removing him from the parent's custody. Mother argues that the juvenile court failed to address this required element of the statute. Mother asserts that the juvenile court should have addressed various alternatives to removal, such as conjoint therapy to address discipline issues, wraparound services, unannounced visits, or family preservation services. Mother argues that the juvenile court's factual findings were deficient, and the court's minute order "'is not a replacement for a statement of the facts supporting the court's decision to remove a child from a parent's custody.'" (In re L.O. (2021) 67 Cal.App.5th 227, 247.)
We disagree that the juvenile court's findings were deficient. The court found, "[b]ased on the court's findings at the trial and [DCFS's] arguments, . . . that continuance in the home of mother is contrary to the child's welfare" and that "[t]here are no reasonable means by which the child's physical health can be protected without needing to remove the child from the parents' physical custody." Thus, the juvenile court relied on its previous factual findings to make the required finding regarding alternative reasonable means to protect the child. Those findings involved mother's physical abuse of Z.B., her failure to protect the child from Keith I.'s abuse, and her unresolved mental and emotional problems. The court also referenced DCFS's arguments, which included mother's continuing denial of her mental health issues and her need to undergo a mental health evaluation. Thus, the record was sufficient to provide clear and convincing evidence that there were no reasonable means to protect Z.B. without removal from mother's custody.
Further, any failure of the juvenile court to make the required findings is harmless error in this case. A removal order "is subject to the constitutional mandate that no judgment shall be set aside 'unless, after an examination of the entire cause, including the evidence, the [appellate] court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.'" (In re D.P. (2020) 44 Cal.App.5th 1058, 1068, citing Cal. Const., art. VI, § 13.) Thus, cases involving a court's obligation to make findings regarding a minor's change of custody "'have held the failure to do so will be deemed harmless where "it is not reasonably probable such finding, if made, would have been in favor of continued parental custody."'" (In re L.O., supra, 67 Cal.App.5th at p. 247.) In this matter, any failure of the court to repeat the facts supporting its finding, by clear and convincing evidence, that there were no reasonable means to protect the minor short of removal was harmless. It is not reasonably probable that this would have changed the outcome of the proceeding.
Substantial evidence supports the juvenile court's dispositional order removing the child from mother's custody. The evidence supported both the court's finding that there was a substantial danger to Z.B. if returned to mother's custody, and there were no reasonable means to protect the minor without removal.
DISPOSITION
The order is affirmed.
We concur: ASHMANN-GERST, Acting P. J., KWAN, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.