Opinion
B311694
03-22-2022
In re E.G. et al., Persons Coming Under the Juvenile Court Law. v. Y.B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Nos. 20LJJP00803, 20LJJP00803A-D Michael C. Kelley, Judge. Affirmed.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
COLLINS, J.
Mother Y.B. appeals from the juvenile court's dispositional orders removing her four children from her custody pursuant to Welfare and Institutions Code section 361. She challenges the sufficiency of the evidence to support the removal order. Mother also contends the court erred in terminating jurisdiction over the three oldest children, with an order granting custody to their father, E.G. (father). We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
I. Referral and Petition
Mother and father have three children: E. (born 2008), M. (born 2011), and I. (born 2013). Mother also has a fourth child, H. (born 2015) with father Jose C. (Jose). The family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) on December 1, 2020, when it received a referral stating that mother had been arrested the day before. The caller reported that mother and the children had been living in a motel for several months, with mother staying in one room and the children in a second room.
Father and Jose are not parties to this appeal. We include facts related to H.'s removal from Jose only as relevant here.
According to the incident report, deputies from the Los Angeles County Sheriff's Department were conducting a patrol check in the parking lot of the motel in Santa Clarita on November 30, 2020. The deputies observed a blue car without license plates and determined the vehicle was reported stolen. On the floor of the car, deputies found a receipt from the motel issued to mother. An employee at the front desk said she had seen mother driving the car, and that mother was staying in room 130 and her children were staying in room 141. When mother appeared at the front desk, the deputies detained her. Mother stated that she had been driving the car for about a week, she had received the keys from a man named Mike, and was planning to buy the car from him. In room 130, deputies found a man who told them he had "just smoked some meth." The man told deputies that he paid mother to shower in her room. In the room, deputies found a methamphetamine pipe and a small baggie containing methamphetamine. Mother claimed the methamphetamine did not belong to her. In room 141, deputies found the four children alone watching television. Mother was arrested for possessing the stolen vehicle and for identity theft related to checks found in her room. The children were initially left with maternal grandmother; father later picked up E., M., and I.
One of the arresting deputies told DCFS that mother was so "irate" during her arrest that he was unable to determine if she was under the influence at the time. The deputy also reported that mother admitted to using methamphetamine as a coping mechanism; mother told him that there was a pound of methamphetamine in her car, but it was not hers. The deputy also told DCFS that the children were alone in their hotel room for "who knows how long," and that mother's room was "absolutely disgusting."
A DCFS children's social worker (CSW) spoke with father on December 2, 2020. Father stated that mother had a history of drug abuse and that he had been fighting for physical custody of his children for a long time. Father met with the CSW at his home the next day. He stated that he knew mother had been abusing drugs for years, but he was never able to prove it. Father feared for his children's safety when they were with mother, but said that the children had never disclosed anything concerning to him until now. According to father, E. told him mother was using drugs and E. had observed her smoking "weed." E. also reported that a car parked outside the motel was shot at. Father told the CSW that the children mentioned a man named "Ghost," whom they seemed to be afraid of and who would yell at them. The children also told father that mother would leave at night and would not return until they woke up. Father and his girlfriend told DCFS that the children were dirty and had lice when father picked them up.
The CSW met with E., M., and I. at father's home on December 3, 2020, and observed that the children were well groomed and demonstrated appropriate hygiene. The CSW spoke with each child individually. E. (then age 12) reported that the family had lived at the motel for about three and a half months, after getting kicked out of a mobile home park. E. stated that he and his siblings stayed in one room at the motel and mother stayed in another room. E. reported that mother smoked "weed," and that he knew about it because he also had experimented with marijuana.
E. also reported that mother would leave all night and not come home until the morning. E. told the CSW that mother had a lot of men come to her room; when he asked her why, she replied that she needed help to pay for the motel. E. stated he knew when mother was on drugs because she had a "different angry mood" and would say things like, "I don't want to be a mother. You guys make me feel like I'm going to die." E. recalled times when he knocked on mother's door and mother's friend, Ghost, would yell at him and tell him to stop. E. believed that Ghost was part of a gang and that people shot at mother's car and broke her car window because they were looking for Ghost. E. also identified two other men, Michael and Panda, who were frequently with mother and were arrested at the same time. E. stated he was afraid of Ghost and Panda and did not feel safe in the motel, but he did feel safe with father.
E. told the CSW that he knew mother did drugs besides marijuana because once mother asked him to get something from the diaper bag and E. saw a bag of "weed" and a "bag of white rocks." E. said he looked online and found a picture of the white rocks described as "crystal meth." E. stated that he wanted to tell DCFS everything because he knew mother needed help.
M. (then age nine) confirmed that the children had one room and mother had another at the motel. She also confirmed that mother would leave the children alone all night to work and M. would feel scared. M. told the CSW that other people living in mother's room included Panda, Ghost, Skinny, and Lala. M. was afraid of Ghost, who would yell at E. M. stated that she did not have much food while living with mother because mother was "broke." M. said she had never seen mother use drugs. But she thought mother was on drugs because of "the way she was acting when she was arrested." M. also stated that the children got "bugs" in their hair because the motel room was dirty. M. denied that the children were physically disciplined, but said mother would spank the children if they were in "big trouble."
I. (then age seven) also told the CSW that mother left every night and came back in the morning. She reported that she was afraid of Ghost, who lived with mother in her room.
The CSW met with maternal grandmother at her home on December 3. Maternal grandmother said that mother had been struggling with using methamphetamine since she was 17. Mother and the children lived with maternal grandmother for a year, then moved out in February 2020. The CSW also spoke with H. (then age five) at maternal grandmother's home. H. said that she knew what "weed" was but had never seen mother smoke it. She said that she and her siblings had their own motel room and mother had a room with "her drug people," Michael, Panda, and Ghost. H. told the CSW that when they were in trouble, mother would smack them in the arm or on the butt, and mother would also punch E. in the arm or smack his cheek.
On December 8, 2020, the CSW spoke with a motel employee at the front desk. The employee said that mother and the children had been living there about three months and she was concerned because mother would have "local drug users" in her room. She also reported that the motel had a five person limit per room.
The CSW also met with mother, who was staying at the motel but would not allow the CSW into her room. Mother said the methamphetamine found by the deputies was not hers and she last used methamphetamine two years ago. She also denied stealing the car. She claimed that the children were in a separate room because the motel had a four person limit. Mother told the CSW that she used marijuana with a vape pen but denied that the children had ever seen her use drugs. She said that E. had never seen methamphetamine and did not know how to look it up. Mother denied physical abuse of the children, but acknowledged that she spanked them if they were not listening. Mother agreed to submit to a drug and alcohol test and requested to schedule the test in Lancaster because she was driving there that day. DCFS reported that mother was a no-show for the test on December 8.
On December 9, the CSW met with H.'s father, Jose. He reported that he and mother did not have a custody order regarding H. He stated that he had always been involved in H.'s life and would agree to custody if she were removed from mother, but that H. was in good hands with maternal grandmother.
In the detention report, DCFS determined that the children were at a high risk of neglect due to mother's ongoing substance abuse and lack of supervision of the children. DCFS recommended removal of the children from mother and removal of H. from Jose due to his outstanding criminal charges and admitted past drug use. DCFS concluded that due to mother's substance abuse and failure to supervise the children, leaving the children with mother while providing voluntary family maintenance services or informal supervision were inadequate options. On December 14, 2020, the court ordered the removal of the children from mother and of H. from Jose. E., M., and I. remained placed with father and H. remained with maternal grandmother.
The CSW spoke with mother again on December 15. Mother had not submitted to the drug test on December 8 as promised; she stated could not do so because she did not have a car. Mother agreed to test the next day. Mother stated that she did not understand why her children were removed from her care if she did nothing illegal in front of them; mother then stated that she does nothing illegal at all. DCFS later reported that mother was a no show for the scheduled makeup drug test on December 16, 2020, as well as for a random test on January 19, 2021.
The CSW met with E., M., and I. again at father's home on December 15. E. reported that he was happy at father's home; it was a little "too strict" but it was nice to have a parent around. He had not spoken to mother since the incident because "I don't feel like talking to her because what she did was not okay." He overheard mother telling father on the phone that the situation was all father's and maternal grandmother's fault. E. disagreed, stating that "this is what [mother] got herself into." When the CSW informed E. of the removal order, E. stated he was happy that it would force mother to get the help she needs.
The CSW reported that M. was in good spirits and M. stated she was happy in father's home because it was better than a hotel. M. also reported that she saw Ghost put his hand on mother's throat "a lot" of times. I. also told the CSW that she was happier than the last time she saw the CSW and she liked living with father because he was making them go to school. She also stated that she missed mother.
The CSW met with H. at maternal grandmother's home the same day. H. reported being happy living with maternal grandmother. She stated that she missed her siblings but she was able to FaceTime with them. H. said that she sometimes spoke with mother over the phone but that mother lied a lot. The CSW reported that H. appeared happy, comfortable, and well bonded with maternal grandmother.
DCFS also reported four prior referrals for the family. In 2011, a referral alleged that mother left M. strapped in a car seat on a bed and the car seat then flipped over onto the floor. The referral was closed as inconclusive. In 2014, a referral reported bruises on E.'s forehead and arm. E. stated that the bruise on his arm was caused by mother pinching him; mother admitted to pinching E. when he "acts up." DCFS found that the allegation of physical abuse was inconclusive. In 2017, a referral reporting ongoing domestic violence between mother and her boyfriend was closed as inconclusive. Finally, in August 2020, a referral reported that mother was getting high, selling crystal methamphetamine, and allowing visitors to get high in the bathroom while the children were in the home. The referral was closed as inconclusive.
DCFS filed a dependency petition on December 17, 2020 on behalf of E., M., I., and H. under section 300, subdivisions (a), (b)(1), and (j). In counts a-1 and b-3, the petition alleged that mother physically abused E. by striking him with a closed fist, and that she had previously struck E.'s arm, buttocks, or face with an open hand. Counts a-2 and b-4 alleged that mother physically abused M., I., and H. by striking them with an open hand on the arm and buttocks. In count b-1, the petition alleged that mother had a history of substance abuse, including methamphetamine and marijuana abuse. The petition also alleged that father knew of mother's substance abuse and failed to protect the children by allowing them to reside with mother. Count b-2 alleged that mother endangered the children by regularly leaving them alone at home for several hours during the night without adult supervision. The petition further alleged that mother was arrested after illicit drugs and paraphernalia were found in her hotel room and vehicle, within access of the children, and that on a prior occasion, E. found methamphetamine in a bag. Count b-5 alleged that H.'s father, Jose, had an extensive criminal history, including a recent arrest for murder, which endangered H. Counts j-1 and j-2 alleged that the mother's physical abuse of the children endangered their siblings.
Section 300 states, in relevant part, "A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶](a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. . . . [¶] (b)(1) The 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 his or her parent . . . to adequately supervise or protect the child. . . . [¶] (j) The child's sibling has been abused or neglected, as defined in subdivision (a), (b), . . . and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."
In an addendum filed December 17, 2020, DCFS reported that it contacted father in an attempt to speak with E., M., and I., but father stated the children were not available because he was at work. Father reported that the children were doing well and were slowly adjusting to having more structure in the home. Father told DCFS that the children had shared "some stories" with him about their life with mother, reporting drug use and mother leaving them in the motel room alone. Father stated that he did not know "how bad it was" and that E. told father he had not previously shared what was going on because E. did not want mother to get in trouble. Father stated that mother spoke to the children the night before and told them "you don't love me anymore"; father stepped in and told mother not to speak to the children in that manner.
The CSW also left a voicemail message with maternal grandmother in an attempt to speak with H. The CSW spoke with mother on December 17, and she reported that she was in the emergency room and had not been feeling well for the last few days, probably because she was depressed without the children.
At the detention hearing, the court found a prima facie case for jurisdiction over the children under section 300. The court ordered the children removed from mother, H. removed from Jose, released E., M., and I. to father, and placed H. with maternal grandmother. The court also ordered monitored visitation for mother and Jose.
II. Jurisdiction/Disposition Report
DCFS filed a jurisdiction/disposition report on February 5, 2021. DCFS reported that it had not been able to re-interview the children for the report and referred to their statements reflected in the detention report.
DCFS reported additional interviews with mother and father. Mother spoke with a DCFS dependency investigator (DI) on February 2, 2021. Regarding the physical abuse allegations, she stated that she hit E. in the arm and once "smacked him in the mouth because he was yelling in my face." She contended that E. had a "lot of anger bottled up because his father wasn't around." She also stated that once she punched E.'s leg because he hit his sister, but it was "not like I'm beating them; I discipline them." Mother also acknowledged spanking the children "when they are doing something wrong." Father told the DI that E. confirmed that "when they misbehaved [mother] would discipline them like that," but that mother had taken parenting classes and "knows she's not supposed to do that."
When asked about the allegations of substance abuse, mother acknowledged using methamphetamine and marijuana in the past but denied current use. Regarding the allegations that she left the children alone, mother stated that she would leave the younger children with E. briefly while she went to the store, but she "wouldn't disappear." She told the DI that she stayed in one motel room with her children and would let homeless men shower in the other room for money. She "kind of figured" the men were using drugs in the other room but told them not to. She also claimed the drugs found in the car were not hers and noted she was not charged with possession. Father told DCFS that mother had not let him see the children for three months before her arrest, and E. and M. told him mother was afraid for father to see what was going on at the motel.
Mother also told DCFS that she had taken anger management and parenting classes during the 2014 investigation alleging pinching. She reported that she and father separated when I. was a baby. She stated that she and father did not have any custody orders but he would take the children every weekend and every other holiday. She started a relationship with Jose shortly after ending her relationship with father, but she and Jose "were always fighting because we were both using meth." Mother contended that she was now sober and denied any mental health issues. Mother stated she was willing to "drug test every[ ]day if needed."
Father stated that he was in the process of seeking a family law order for custody of his children when mother was arrested and that he wanted full custody because mother was "unstable." Father also reported that he had enrolled M. and I. in therapy and was looking for a place to enroll E.
At the conclusion of the report, DCFS recommended continued detention from mother, with the older three children released to father, and detention of H. from both mother and Jose.
In a last-minute information filed March 9, 2021, DCFS stated it had no information to support the allegation that father knew of mother's substance abuse and failed to protect the children. Accordingly, DCFS stated that father was non-offending in the petition. DCFS also stated that there were no concerns with father's care of his children. Thus, it recommended that the court sustain the petition and terminate jurisdiction as to E., M., and I., with a custody order granting joint legal custody to mother and father and sole physical custody to father. DCFS recommended that mother's visitation continue to be monitored because she had not complied with services to address the case issues, including random and on demand drug testing, parenting programs, individual counseling, and conjoint counseling with the children.
III. Adjudication and Disposition
At the adjudication and disposition hearing on March 15, 2021, mother testified that she had been the children's primary caretaker since birth. She acknowledged that she had used physical discipline "with an open hand" on E. about five years earlier, but denied continuing to use such discipline. She took a parenting class when DCFS was investigating the allegation that she had pinched E. Mother testified that since that class, she had not used any physical discipline. However, mother acknowledged two incidents in 2020, one where she "back-handed" E. on the leg to get him to stop yelling and another where she hit him on the face because he was acting as if he was going to hit her. She also stated that she would give the children a "tap on the bottom" if they were fighting.
Mother acknowledged using methamphetamine and marijuana in the past, but claimed she stopped using methamphetamine in April 2019. She testified that she only occasionally used marijuana and had a medical recommendation to use it for back pain. She denied ever smoking around the children, stating that she would smoke outside while the children were in the house. She testified that on some days, she would take a few hits from her vape pen "throughout the day." Mother denied ever having a bag of methamphetamine in her purse. She acknowledged that she had not completed any drug testing, but stated that she lacked transportation and often would arrive at the test site when it was about to close.
Mother claimed that the family moved to the motel after being evicted because she complained about black mold in their apartment. She testified that she rented two rooms because one was not "big enough for all of us to be comfortable." According to mother, she stayed in one room with the children and used the other room for storage. Then, starting four or five days before her arrest, she allowed some homeless residents to shower in the other room in exchange for money, which she would use for food or to pay for another night at the motel. Mother identified several individuals whom she allowed to use the room, including Michael, Laura, and two whom she knew by nicknames Panda and Skinny. She first testified that she was not aware that they were using drugs or had drug paraphernalia in the room, but then admitted that she knew they were "using some type of drugs," but did not know what type of drugs. She testified that she did not witness any drug use and the children were not exposed to it.
Mother testified that she never left the children home alone and would occasionally ask their adult cousin to watch them if she had to run errands. She denied ever leaving the children alone for several hours at night. She stated that "Ghost" was an acquaintance who was helping her pay for the rooms. She acknowledged that the children met Ghost and Panda while staying at the motel.
Mother's counsel asked the court to dismiss the petition entirely as to her. He argued there was no evidence of physical abuse and that spanking was insufficient for jurisdiction. He also pointed to mother's admission of past drug use and denial of current use. In addition, mother's counsel argued there was insufficient evidence that mother endangered the children by leaving them alone.
Counsel for the children argued that the evidence showed mother had used inappropriate physical discipline, was not staying in the same motel room as the children, had not made any effort to complete her drug testing, and had an ongoing issue with drug use. Counsel for DCFS asked the court to sustain the petition as alleged and to close the case as to E., M., and I., awarding physical custody to father.
The court found that mother's denial of physical abuse was not credible, including her "attempt to minimize the striking of the children as taps with the exception of the time she struck E[.] in the face." The court credited E.'s description of mother's conduct, as corroborated by the statements of the other children. The court found that mother striking E. in the face and on the leg was not reasonable discipline, as "[t]he fact that they were either for minor offenses or when mother was angry about E[.]'s conduct indicates that this was not thoughtful discipline but, in fact, a manifestation of anger." The court also noted that mother's statement that she would take "hits [of marijuana] throughout the day" suggested that while she might not have smoked in front of the children, "she did parent under the influence." In addition, the court found mother was not credible in her denial of current drug use, noting her lack of drug testing and unreliable excuses for failing to test. Instead, the court relied on the children's statements regarding mother's ongoing drug use, particularly E.'s statements about finding drugs in mother's bag.
The court also rejected mother's explanation regarding the two motel rooms, reasoning that mother "did not have the wherewithal really to rent rooms solely for the purpose of storing the children's toys and clothes. I find that mother actually was residing in one of the rooms with these other individuals, who the children described as her 'drug friends,' while the children were left to themselves in the other room. That put them in a dangerous condition." The court further found credible E.'s statements that mother would leave overnight and leave the children unattended.
The court dismissed counts a-2, b-4, and j-2, alleging physical abuse of M., I., and H., finding there was insufficient evidence that mother's discipline of those children was sufficiently serious to establish a risk of harm. The court also dismissed count a-1, alleging nonaccidental physical abuse of E. The court sustained counts b-1 (substance abuse), b-2 (endangerment), b-3 (physical abuse of E.), and j-1 (risk to siblings from abuse of E.) as to mother. The court found father non-offending and struck him from the petition. The court sustained count b-5 as to Jose. Accordingly, the court found jurisdiction over the children pursuant to section 300, subdivisions (b)(1) and (j).
Turning to disposition, mother's counsel argued that DCFS had not met its burden to remove the children from her. Alternatively, he stated that mother was opposed to the court terminating jurisdiction over the three oldest children. He argued that mother had been the children's primary caregiver since they were born and she wanted the case to remain open so that she could maintain regular visitation. He told the court that mother "does not believe that father will be cooperative in facilitating or complying with court orders for the visitation" without court supervision. Counsel for the children stated that E. and M. wanted the case to close with custody to father, and I. wanted to remain in father's care and "she would only want to live with the mother when she is off drugs." Counsel requested that if the court closed the case, it include a provision for sibling visits with H.
The court found by clear and convincing evidence that it was reasonable and necessary to remove the children from mother because there was a substantial danger to their physical health, and that DCFS had made reasonable efforts to prevent removal. As to E., M., and I., the court found it was in the best interest of the children to terminate jurisdiction with a family law order awarding joint legal custody of the three children to mother and father, sole physical custody to father, and monitored visitation for mother. As to H., the court removed the child from both parents and ordered family reunification services, including monitored visitation for mother and Jose. The court also ordered DCFS to "use best efforts to facilitate sibling visits."
Mother timely appealed.
DISCUSSION
Mother does not challenge the juvenile court's jurisdictional findings that the children were at substantial risk of harm due to her physical abuse of E., her ongoing substance use, and her failure to adequately supervise the children. Instead, she contends that the court erred when it found by clear and convincing evidence that removal from her custody was necessary to protect the children from harm. Specifically, she argues that the court lacked substantial evidence to support removal because DCFS did not re-interview the children regarding disposition. Mother also contends that the court erred in terminating jurisdiction over E., M., and I. We find that mother has largely forfeited her claims by failing to raise them below. In addition, we find no error on the merits. We therefore affirm.
I. Removal
A. Legal Principles
Pursuant to section 361, subdivision (c)(1), the juvenile court may remove a child from the custody of a parent if it finds, by clear and convincing evidence, "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re D.B. (2018) 26 Cal.App.5th 320, 328 (D.B.), citing In re T.V. (2013) 217 Cal.App.4th 126, 135-136.)
"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." (D.B., supra, 26 Cal.App.5th at p. 332, citing In re Cole C. (2009) 174 Cal.App.4th 900, 917.) 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." (D.B., supra, 26 Cal.App.5th at p. 332, citing § 361, subd. (c)(1).)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012; see also V.L. (2020) 54 Cal.App.5th 147, 155 [finding that "O.B. is controlling in dependency cases"].)
B. Analysis
Mother's challenge to the court's removal order focuses on her contention that DCFS "failed to include any input from the children as to dispositional issues" in its jurisdiction/disposition report or case plan. She argues that this deficiency rendered the court unable to adequately determine that removal was necessary or that reasonable means could have prevented it. Respondent DCFS contends that mother forfeited any challenge to the removal order because she did not object to it below.
Generally, issues not raised in the trial court cannot be raised on appeal. "Many dependency cases have held that a parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [collecting cases].) "As some of these courts have noted, any other rule would permit a party to . . . deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable." (Ibid.) This is particularly true as to a procedural challenge, as a timely objection would allow DCFS and the court to address any error. (See, e.g., In re Brian P. (2002) 99 Cal.App.4th 616, 623 [finding that parent did not forfeit challenge to sufficiency of the evidence, but did forfeit the objection that an adoption assessment did not comply with statutory requirements].)
Mother acknowledges that she did not object at disposition to the absence of information from the children, nor did she seek a continuance to allow for further interviews. Thus, we find that she has forfeited her right to raise this challenge.
To the extent mother challenges the sufficiency of the evidence supporting the removal order, she may raise that claim on appeal. (See In re Javier G. (2006) 137 Cal.App.4th 453, 464 ["'[t]he contention that a judgment is not supported by substantial evidence, . . . is an obvious exception'" to the forfeiture rule]; see also In re R.V. (2012) 208 Cal.App.4th 837, 848 [no forfeiture of claim challenging the court's dispositional order on the ground of insufficient evidence]; In re Brian P., supra, 99 Cal.App.4th at p. 623 ["When the merits are contested, a parent is not required to object to the social service agency's failure to carry its burden of proof."])
However, we conclude that there was substantial evidence in the record for the court to find it highly probable that the children would be at substantial risk of harm if they remained in mother's custody. Despite mother's claims regarding a lack of input from the children, DCFS interviewed each child twice and provided their statements to the court. The children consistently reported that mother stayed in one motel room while they stayed in another, and that mother would leave them alone overnight. The children also told DCFS that mother continued to use drugs and allowed other drug users to stay in her room, some of whom frightened and yelled at the children. Despite mother's claim that the children were never exposed to drug use, all four children identified marijuana or "weed" as a drug, even five-year-old H., who also referred to mother's acquaintances as her "drug people." Mother's denial of continuing drug use was belied by her repeated failures to appear for drug testing. (See In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217 [court may consider a missed test as "the equivalent of a positive test result"].) In addition, several of the children also reported mother's physical abuse of E., and mother acknowledged that she had hit him on multiple occasions. The court was entitled to credit the children's testimony and to conclude that mother was not credible. In light of this evidence, the court did not err in concluding that the children were at risk of harm from mother's conduct.
Moreover, mother's continued denials regarding the abuse, drug use, and improbable claims regarding renting an extra motel room to store belongings supported the conclusion that mother had not accepted responsibility for her conduct and therefore the risk to the children from her conduct was ongoing. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge"].) As such, substantial evidence supported the court's conclusion that there were no reasonable means to protect the children without removing them from mother's custody. (§ 361, subd. (d); D.B., supra, 26 Cal.App.5th at p. 332.)
II. Terminating Jurisdiction
A. Legal Principles
Section 361.2 sets forth a two-step process once the court has removed a child from the custodial parent. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1131 (Austin P.).) Under the first step, set forth in section 361.2, subdivision (a), the court examines whether to temporarily place a child with the nonoffending noncustodial parent. If "that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional wellbeing of the child." (§ 361.2, subd. (a).)
If the court places the child with the noncustodial parent, it proceeds to the second step. Under section 361.2, subdivision (b), "the court may do any of the following: (1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. . . . (2) Order that the parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months. . . . (3) Order that the parent assume custody subject to the supervision of the juvenile court. . . ."
A court may not terminate jurisdiction under subdivision (b) "until it analyzes whether ongoing supervision of the child is necessary." (Austin P., supra, 118 Cal.App.4th at p. 1129; see also In re Janee W. (2006) 140 Cal.App.4th 1444, 1451.) We review the court's determination under section 361.2, subdivision (b) for an abuse of discretion. (Austin P., supra, 118 Cal.App.4th at p. 1135.)
B. Analysis
Mother argues that the trial court abused its discretion in terminating jurisdiction over E., M., and I. We disagree. Once again, mother points to the lack of a third interview with the children and notes that she had been their primary caregiver since birth. However, we find that the record contains ample evidence supporting the trial court's conclusion that placing the children with father was not detrimental and that ongoing supervision was unnecessary. DCFS assessed all three children while they were living with father and all three stated that they felt safe and happy in his custody. Moreover, DCFS observed that the children were well-groomed and clean in father's care, and that father was making sure the children were attending school and were enrolled in therapy. Mother points to no evidence of detriment to support her claim.
Further, mother cited no evidence to support her suggestion that father would not comply with visitation absent court supervision. As to sibling visitation, H. indicated that she had already had virtual visits with her brother and sisters and the evidence suggested father and maternal grandmother would work together to allow those to continue. Given that all three children continued to do well in father's care at the time of disposition, the court did not abuse its discretion in terminating jurisdiction over E., M., and I.
DISPOSITION
The order is affirmed.
We concur: WILLHITE, ACTING P.J., CURREY, J.