Opinion
B301263
06-26-2020
In re MIRACLE P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANGELA B., Defendant and Appellant.
Patricia K. Saucier, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP04641A) APPEAL from orders of the Superior Court of Los Angeles County, Craig S. Barnes, Judge. Affirmed. Patricia K. Saucier, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
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In this case, the juvenile court exerted dependency jurisdiction over a five-year-old on the ground that her mother's "violent and assaultive behavior" against a third party placed the child at risk, and removed the child from the mother's custody. The mother contends both rulings are not supported by substantial evidence. We conclude they are, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Miracle P. was born in May 2015 to Angela B. (mother) and Brandon R. (father). Born more than 17 weeks premature, Miracle was born without fingers on her right hand and has developmental difficulties; at age five, she is still non-verbal.
On July 19, 2019, mother starting yelling at a neighbor, who was a minor, from outside the minor's apartment. When the minor came outside, mother "got into her face and began to yell" and threatened to "beat up" the minor if the minor was not respectful to mother's mother. At one point, mother got so angry, she ran back to her apartment, retrieved a kitchen knife, and chased the minor until the minor ran back into her apartment. A witness corroborated this account, and a nearby video camera recorded mother chasing the victim with an object in her hand. A knife matching the description of the one used by mother was found in mother's kitchen sink. As a result of this incident, mother was charged with assault with a deadly weapon. During the entire incident, mother left Miracle unattended in her apartment.
Mother has been the victim of violence in the past, has not addressed that trauma, and has previously been violent toward others. Mother was physically abused by her father; her first husband shot her twice in the arm; and she obtained a domestic violence restraining order against one of her more recent boyfriends. Although mother attended counseling after the shooting incident, she declined to address her past trauma because it was "none of the [counselor's] business." And while in prison for "dope" charges in 2008, mother assaulted a fellow inmate with a deadly weapon other than a firearm, which added two more years to her prison term.
II. Procedural Background
On July 23, 2019, the Los Angeles County Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exert dependency jurisdiction over Miracle on the ground that mother's "violent and assaultive behavior" on July 19 "endangers" Miracle's "physical health and safety, creates a detrimental home environment, and places the child at risk of serious physical damage and danger." The Department alleged that dependency jurisdiction was appropriate under subdivisions (a) and (b) of Welfare and Institutions Code section 300.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On July 24, 2019, the juvenile court held a hearing, detained Miracle from mother, and ordered the Department to "provide" mother "low cost, no cost, case appropriate referrals." In the next several weeks, mother was enrolled in parenting classes, was signed up to attend individual counseling services, and was "waiting to be enrolled in anger management" classes.
On August 19, 2019, the juvenile court held the jurisdictional and dispositional hearing. The court sustained the allegation under subdivision (b)(1) of section 300. Mother's conduct in "[b]olting out of the [apartment] unit to confront someone in a violent manner," the court found, "is not acting in a way that's consistent with protecting the child," particularly when mother "left" Miracle alone in order to "inject herself into th[e] . . . altercation." The court also ordered Miracle removed from mother's custody. In the court's view, mother's "impulse-control issues" that had prompted her to "confront[]" the minor "with a screwdriver or a knife or whatever it is that's in her hand" while leaving Miracle alone "put the child at risk" and that, notwithstanding mother's recent efforts in attending or signing up for classes, the court did not "know that" mother's issues "had been addressed" and found that it would be "aspirational at this point . . . to say that that risk is gone." The court then ordered the Department to provide mother with reunification services, and mother's case plan included parenting classes, individual counseling and anger management.
Prior to this date, the Department filed a First Amended Petition, but the allegations against mother remained the same. The petition was amended to add an allegation based on father's conduct, but father is not a party to this appeal.
The court dismissed the allegation based on subdivision (a) in light of the Department's concession to doing so, and also interlineated the subdivision (b) count to specify that Miracle was "in [mother's] care" rather than "presen[t]" with mother during mother's altercation with the minor.
Mother filed this timely appeal.
DISCUSSION
I. Jurisdictional Finding
As pertinent here, a juvenile court may exert dependency jurisdiction over a child if "[t]he child has suffered, or there is substantial risk that the child will suffer, serious physical harm . . ., as a result of the failure or inability of . . . her parent . . . to adequately supervise or protect the child." (§ 300, subd. (b)(1).) Where, as here, dependency jurisdiction is "based solely on risk to the child" (rather than on past harm to the child), "that risk must be shown to exist at the time" of the jurisdictional hearing. (In re M.M. (2015) 240 Cal.App.4th 703, 719 (M.M.); In re Yolanda L. (2017) 7 Cal.App.5th 987, 993 (Yolanda L.); In re J.K. (2009) 174 Cal.App.4th 1426, 1435.) Whether a child is still at risk due to a parent's past act(s) of violence turns on whether "the violence is ongoing or likely to continue." (In re Daisy H. (2011) 192 Cal.App.4th 713, 717; Yolanda L., at p. 993.) Whether that violence is likely to continue, in turn, can rest in part on whether the parent has acknowledged her past act(s) of violence and, if so, taken sufficient steps to address them. (E.g., In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge."].) We review the juvenile court's factual findings regarding risk, like all of its factual findings, for substantial evidence. (In re F.S. (2016) 243 Cal.App.4th 799, 811-812.)
Substantial evidence supports the juvenile court's finding that mother attempted to engage in violence with her neighbor and that this violence placed Miracle at substantial risk of serious physical harm. Mother concedes that she left Miracle, a special needs child of tender years (e.g., In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [children six years old or younger are considered children of "'tender years'"]), completely unattended during the incident with the neighbor. And substantial evidence supports the court's finding that mother's aggressive and violent conduct—with its attendant risk of harm to Miracle—is likely to continue. As the Department noted in one of its reports, mother has suffered a great deal of past trauma that she has yet to resolve and that has prompted mother to act out aggressively and violently on more than one occasion. (See M.M., supra, 240 Cal.App.4th at pp. 708, 720 [unaddressed "anger problem" can exacerbate risk]; In re T.V. (2013) 217 Cal.App.4th 126, 136-137 [same].) What is more, mother has yet to acknowledge her conduct in this case or the danger it poses to Miracle: Mother first denied chasing the neighbor at all, subsequently admitted she chased the neighbor but with a butter knife, and continues to maintain that her conduct did not endanger Miracle because Miracle was not present for the chase/attack. By the time of the jurisdictional hearing, mother had also just barely started to attend classes and counseling that would help her address her issues.
Mother responds with three further arguments. First, she argues that the incident with her neighbor was a "one-time incident" and for support cites In re J.N. (2010) 181 Cal.App.4th 1010 (J.N.). Unlike the parents in J.N. who had no "substance abuse problem" that might recur (id. at p. 1022; see also In re James R. (2009) 176 Cal.App.4th 129, 136-137 [mother's "mere possibility of alcohol abuse" insufficient to create risk, particularly with another parent available to watch the kids]), mother had a history of unaddressed past trauma and a pattern of acting out aggressively and violently. Second, she argues that she is otherwise a good mother to Miracle and is well-bonded to her. This is true, but the critical inquiry for the juvenile court is whether the conduct underlying a particular case—not a parent's conduct at other times—warrants the exercise of dependency jurisdiction. To the extent mother is inviting us to reweigh the evidence and come to a different conclusion than the juvenile court, we must decline that invitation. (In re Lana S. (2012) 207 Cal.App.4th 94, 103.) Lastly, mother argues that there is no longer any risk because she is subject to a protective order requiring her to stay away from the neighbor she attacked in this case. As the trial court noted, however, this order does not protect Miracle from the risk that mother might lash out at the next person who offends her and thus does not erase the risk.
II. Removal Order
Once a juvenile court exerts dependency jurisdiction over a child, it may remove the child from her parent only if it finds, by clear and convincing evidence, that (1) "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the [child] if the [child] were returned home," and (2) "there are no reasonable means" short of removal "by which the [child's] physical health can be protected." (§ 361, subd. (c)(1).) The court must also "make a determination as to whether reasonable efforts were made to prevent or eliminate the need for removal." (Id., subd. (e).) We review the juvenile court's findings underlying its removal orders for substantial evidence. (M.M., supra, 240 Cal.App.4th at pp. 719-720.) Although it remains unsettled whether our review for substantial evidence must take into account the clear and convincing evidence standard (compare In re Ashly F. (2014) 225 Cal.App.4th 803, 809 (Ashly F.) [applying higher standard on appeal] with In re J.S. (2014) 228 Cal.App.4th 1483, 1492-1493 [disregarding higher standard on appeal]), we will sidestep the conflict by using the higher, more parent-friendly standard.
Substantial evidence supports the court's finding that there would be a "substantial danger" to Miracle's "physical health" or "physical or emotional well-being" if she were returned to mother's custody. As a general matter, the evidence underlying a juvenile court's jurisdictional finding that a child is at substantial risk of serious physical harm also constitutes evidence supporting a court's removal-related finding that leaving the child in her parent's custody would place the child's "physical health" in "substantial danger." More specifically, the juvenile court here found that mother had "impulse-control issues"; that those issues are what placed Miracle at risk; and that mother had yet to address those issues, either in the past or through the completion of programming in this case. Each of these findings is supported by evidence in the record. Mother reiterates that the July 2019 incident was a "one-time incident" that is unlikely to recur, and that she had attended a few classes by the time of the dispositional hearing, but those arguments do not mitigate the danger to Miracle for the same reasons articulated above.
Substantial evidence also supports the court's related findings that there are no reasonable means short of removal to protect Miracle's physical health and the Department has made reasonable efforts to prevent or eliminate the need for removal. Although mother is correct that the Department's Jurisdictional Report did not set out what efforts the Department made, it is undisputed that the Department was ordered to offer mother services and, within weeks, mother thereafter signed up for a parenting class and for individual counseling. To constitute "reasonable efforts," a department's efforts need only be "reasonable under the circumstances" and "based on the particular circumstances of a case." (In re H.E. (2008) 169 Cal.App.4th 710, 725 (H.E.); In re Amy M. (1991) 232 Cal.App.3d 849, 856; Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598-599.) The classes and counseling the Department provided are "reasonable under the circumstances" because they are aimed at addressing mother's unaddressed trauma—and thus aimed at eliminating the risk that necessitates removing Miracle from her custody. Although the Department was only able to offer mother three weeks' worth of those services, that short period reflects nothing more than the fact that there were only four weeks between the filing of the Department's petition and the dispositional hearing (and less than five weeks between the incident triggering the petition and the dispositional hearing). The juvenile court also noted that options short of removal would not protect Miracle at this time because mother's outbursts of aggression and violence were unpredictable, because the key to removing that aggression and violence was addressing it through counseling and classes, and a finding that mother had already addressed those issues by attending a handful of classes was wholly "aspirational at th[at] point" in time.
Citing In re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.), Ashly F., supra, 225 Cal.App.4th 803, and In re Jeannette S. (1979) 94 Cal.App.3d 52 (Jeannette S.), mother contends that the juvenile court's removal findings were defective because (1) the court did not discuss and then reject various alternatives short of removal (such as unannounced visits), and hence did not "state the facts on which [its] decision to remove [the child] [was] based" (§ 361, subd. (e)), and (2) the Department did not also offer her anger management classes in the 31 days between the incident and the jurisdictional and dispositional hearing. We reject these contentions. The juvenile court did explain why any disposition short of removal would not suffice; the court's failure to make specific findings cataloguing lesser effective alternatives is neither required by the language of section 361 nor prejudicial where, as here, the court's explanation as to why removal is necessary leaves no reasonable probability that the court would come to a contrary conclusion had it specifically articulated those less effective alternatives. (E.g., In re J.S. (2011) 196 Cal.App.4th 1069, 1079; In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) Unannounced visits would not have alleviated the court's concerns about mother's outbursts of violence unless they occurred all the time. (Accord, In re A.F. (2016) 3 Cal.App.5th 283, 293 [unannounced visits only assess the situation at the time of the visit]; see Jeannette S., at pp. 60-61 [unannounced visits may be a viable alternative in a "dirty home" case]; Henry V., at pp. 529-530 [unannounced visits may be a viable alternative to check on bruises due to excessive child discipline, at least where the discipline is a one-time incident and the parent has embraced counseling].) The Department's efforts in offering individual counseling and parenting classes, even without anger management, were also reasonable under the circumstances. Perfection is not required. (H.E., supra, 169 Cal.App.4th at p. 725.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT I concur: /s/_________, P. J.
LUI ASHMANN-GERST, J., Concurring in part and dissenting in part.
I concur in part and dissent in part.
I agree with the majority that the juvenile court's jurisdictional findings are supported by substantial evidence. However, because the Los Angeles County Department of Children and Family Services (DCFS) did not provide the juvenile court with evidence of reasonable efforts it made to prevent Miracle P.'s (Miracle) removal (Cal. Rules of Court, rule 5.690(a)(1)(B)(i)) from her mother, Angela B. (mother), I would reverse the juvenile court's dispositional order and remand the matter for a new disposition hearing.
A. Standard of review
In dependency proceedings, the burden of proof is substantially higher at the dispositional phase than at the jurisdictional phase if the minor is to be removed from her home. (In re Henry V. (2004) 119 Cal.App.4th 522, 528.) "At a dispositional hearing, the [juvenile] court's findings must be made on clear and convincing evidence. The [juvenile] court must find that the welfare of the child requires that she be removed from parental custody because of a substantial danger, or risk of danger, to her physical health if she is returned home and that there are no reasonable means to protect her without removing her. [Citations.] On review, we employ the substantial evidence test, however, bearing in mind the heightened burden of proof. [Citations.]" (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
B. Applicable law
For a child to be removed from parental custody under section 361, subdivision (c)(1), DCFS has "the burden to prove by clear and convincing evidence that there is a risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child's safety. [Citations.]" (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) Pursuant to section 361, subdivision (e), the juvenile court must "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and must "state the facts on which the decision to remove the minor is based." In making this determination, the juvenile court considers evidence including the DCFS report, which must, by rule, include a "discussion of the reasonable efforts made to prevent or eliminate removal, . . . and a recommended plan for reuniting the child with the family, including a plan for visitation." (Cal. Rules of Court, rule 5.690(a)(1)(B)(i).)
C. Analysis
Mother asserts that DCFS did not comply with applicable law because its reports did not discuss reasonable efforts that it made to prevent or eliminate Miracle's removal from mother. (See Cal. Rules of Court, rule 5.690(a)(1)(B)(i); In re Ashly F. (2014) 225 Cal.App.4th 803, 809-810.) I agree.
In its respondent's brief, DCFS argues that mother forfeited this argument on appeal because she never objected to the adequacy of the DCFS reports below. DCFS is correct. To the extent mother's challenge to the juvenile court's order is based specifically on deficiencies in the jurisdiction/disposition report (as opposed to a more general attack on the sufficiency of the evidence), her objection was forfeited by her failure to object below to the adequacy of the report. (In re A.A. (2008) 167 Cal.App.4th 1292, 1317; In re Brian P. (2002) 99 Cal.App.4th 616, 623.) Because the majority is silent on this point, however, I turned to the merits of mother's appeal on the grounds that the forfeiture rule is not automatic. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) We have discretion to excuse forfeiture, particularly in dependency proceedings where the well-being of the child is paramount. (Ibid.)
The August 19, 2019, report concludes that "[r]easonable efforts were made to prevent or to eliminate the need for removal of the child from his or her home." The problem is that the report does not include the mandated "discussion of the reasonable efforts made to prevent or eliminate removal, . . . and a recommended plan for reuniting the child with the family, including a plan for visitation." (Cal. Rules of Court, rule 5.690(a)(1)(B)(i).) DCFS claims that Miracle could not remain in mother's home because (1) mother would not provide details of the July 2019 incident with her neighbor, (2) mother had a history of aggressive behavior as reflected by the incident in 2008 when she assaulted another inmate in prison, and (3) mother suffered unresolved trauma as a result of abuse she endured by her father and in past relationships. But these remarks are not evidence of efforts DCFS undertook to prevent removal.
The majority speculates that DCFS did provide evidence of reasonable efforts to prevent removal, namely the case-appropriate referrals, which the juvenile court ordered it to offer and which mother accepted by signing up for parenting classes, individual counseling, and anger management classes. In light of the juvenile court's comments at the dispositional hearing a mere three weeks after the referrals were ordered, I do not view these referrals as reasonable efforts to prevent removal. As the juvenile court noted when it removed Miracle from mother, three weeks of these sorts of services was probably insufficient to address the issue that led to DCFS involvement in the first place. It follows that these services cannot be elevated to constitute reasonable efforts to prevent removal. (See In re Ashly F., supra, 225 Cal.App.4th at p. 810 ["'[O]ur dependency system is premised on the notion that keeping children with their parents while proceedings are pending, whenever safely possible, serves not only to protect parents' rights but also children's and society's best interests.' [Citation.] The requirement for a discussion by the child welfare agency of its reasonable efforts to prevent or eliminate removal [citation], and a statement by the [juvenile] court of the facts supporting removal [citation], play important roles in this scheme. Without those safeguards there is a danger the agency's declarations that there were 'no reasonable means' other than removal 'by which the [child's] physical or emotional health may be protected' and that 'reasonable efforts were made to prevent or to eliminate the need for removal' can become merely a hollow formula designed to achieve the result the agency seeks"].)
As DCFS points out in its respondent's brief, when the juvenile court removed Miracle from mother's home, it did so on the grounds that mother has "impulse-control issues." Certainly mother made a grave error in judgment when she chased after her neighbor with a knife. But that one incident does not compel the conclusion that mother has consistent impulse control issues. (See In re Henry V., supra, 119 Cal.App.4th at p. 529 [the evidence supporting the dispositional order was a single occurrence and was not considered an obstacle to reunification in the near future].)
Admittedly, mother has a conviction for assaultive behavior in prison, leading to an additional two-year sentence. But that conviction was 12 years ago and occurred in prison. While that evidence is enough for us to rely upon it when concluding that the juvenile court's jurisdictional finding is supported by substantial evidence, it is insufficient for purposes of the dispositional order.
Given that DCFS got involved with this family because of an isolated incident, DCFS and the juvenile court could have explored whether means short of removal existed. (See, e.g., In re Henry V., supra, 119 Cal.App.4th at p. 529 ["unannounced visits and public health nursing services [are] potential methods of supervising an in-home placement"].) While unannounced visits only assess the situation at the time of the visit (In re A.F. (2016) 3 Cal.App.5th 283, 293), that is something the juvenile court could have evaluated upon remand.
Accordingly, I would reverse the dispositional order and remand the matter for a new disposition hearing, at which time DCFS could present evidence as to what reasonable efforts it made to prevent removal. Then, the juvenile court could consider that evidence and, if it were to determine that reasonable efforts were made and that removal was still appropriate, it could then state its reasons for why removal is necessary. (§ 361, subd. (e); Cal. Rules of Court, rule 5.690(a)(1)(B)(i).)
/s/_________, J.
ASHMANN-GERST