Opinion
B300165
07-01-2020
In K.E., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.G., Defendant and Appellant.
Nancy R. Brucker, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Stephen D. Watson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP07612A APPEAL from an order of the Superior Court of Los Angeles County, Peter R. Navarro, Juvenile Court Referee. Affirmed. Nancy R. Brucker, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
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The juvenile court assumed jurisdiction over 15-year-old K.E. after mother pled no contest to a dependency petition alleging she inappropriately disciplined the child when she dragged K.E. by the hair and struck K.E. in the face. The court placed K.E. in mother's custody under the supervision of the Los Angeles County Department of Children and Family Services (the Department) and ordered mother to participate in parenting classes and counseling. K.E. was later arrested for shoplifting and attempted to commit suicide. After her hospitalization, K.E. refused to return home because she feared mother would hit her again. The Department filed a petition under Welfare and Institutions Code section 387, alleging the previous disposition was ineffective to protect K.E. due to the unresolved conflict with mother. The juvenile court sustained the petition, removed K.E. from mother's custody, and imposed monitored visitation. Mother appeals the order. We affirm.
Statutory references are to the Welfare and Institutions Code. --------
FACTS AND PROCEDURAL HISTORY
Consistent with our standard of review, we state the facts in the light most favorable to the juvenile court's order, drawing all reasonable inferences from the evidence to support the court's findings. (In re D.D. (2019) 32 Cal.App.5th 985, 990 (D.D.).)
K.E. was born in November 2003. When the case, began she lived with mother, three younger half-siblings, and the half-siblings' biological father.
In October 2018, the Department received a referral alleging mother and K.E. had a contentious relationship and K.E. had run away from home after mother physically abused her. Mother admitted she pulled K.E. by the arm when she retrieved the child from a party. She admitted hitting K.E. with an open hand on a prior occasion.
K.E. was living at her godmother's home. She said mother had burst into the party, grabbed her by the hair, punched her in the face, and dragged her away. They had been arguing for months before the incident. Mother had hit her on two prior occasions.
K.E. refused to return home. The juvenile court detained the child in foster care and granted mother monitored visits.
On February 14, 2019, mother pled no contest to a dependency petition alleging she used inappropriate and excessive physical discipline on K.E. The juvenile court declared K.E. a dependent child and placed her in mother's custody under the Department's supervision. The court ordered mother to participate in parenting classes and conjoint counseling with K.E., if appropriate.
In May 2019, K.E. was arrested for shoplifting. Mother confiscated K.E.'s cell phone as punishment. K.E. attempted to drown herself in the bathtub. She was admitted to the hospital, diagnosed with major depression, and prescribed Prozac, which she refused to take. After six days in the hospital, K.E. returned to mother's home and immediately ran away. She refused to return.
K.E. did not believe mother would change and feared mother would hit her again. She said mother "does it every few months and she thinks [it's] ok because she apologizes[,] then she stops[,] then she does it again." (Italics omitted.) K.E. also refused to return home because the family lived in transitional housing where six people had to share one bedroom.
Mother said she wanted K.E. to return home as long as K.E. promised to be respectful. But she did not trust K.E., remarking her daughter "just wants to do whatever she wants without following rules." (Italics omitted.) Because K.E. refused to return home and mother was unable to formulate a safety plan, the Department placed the child with a foster family.
On July 2, 2019, the Department filed a section 387 petition for a more restrictive placement. The petition alleged mother was unable to provide K.E. with "ongoing parental care and supervision" because K.E. refused to return to mother's home. The Department reported it made reasonable, but ineffective, efforts to eliminate the need for K.E.'s removal. Those efforts included referring mother to parenting training and referring the family to counseling and family preservation services. Mother failed to consistently attend counseling sessions and the parenting sessions proved ineffective because they focused on parenting young children, not teenagers.
On August 15, 2019, the juvenile court held an adjudication and disposition hearing on the section 387 petition. Mother argued she should be dismissed from the petition or, at a minimum, the allegation should be modified to reflect K.E.'s role in the breakdown of the existing custody arrangement. Mother maintained the ongoing issues did not reflect her inability to provide K.E. with parental care. She argued the real source of the family's troubles was K.E.'s refusal to live at home.
The Department argued K.E. was in fear of mother. Counsel suggested K.E.'s preference to live in foster care, rather than return to mother's home, indicated there was something "seriously wrong" with the placement. K.E.'s counsel joined with the Department, but suggested the petition should be amended to reflect mother was unable to adequately supervise K.E. due to their contentious relationship.
The juvenile court sustained the petition, amending it to state a "serious parental conflict" between mother and K.E. remained "unresolved," which left them "unable to take advantage of, and benefit from, family maintenance services provided to them," and this "inability to properly address and treat this conflict" placed K.E. "at risk of serious harm."
On disposition, the court removed K.E. from mother's custody, finding it would be detrimental to the child to be under mother's care. The court ordered mother and K.E. to participate in individual counseling and conjoint counseling, if appropriate. The court granted mother monitored visits a minimum of twice per week for two hours per visit and authorized the Department to liberalize visitation in its discretion.
DISCUSSION
1. Substantial Evidence Supports the Finding that the Previous Disposition Was Inadequate to Protect K.E.
"A section 387 supplemental petition is used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of court-ordered care." (In re T.W. (2013) 214 Cal.App.4th 1154, 1161 (T.W.), citing § 387; Cal. Rules of Court, rule 5.560(c).) In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been ineffective in protecting the child. (§ 387, subd. (b); rule 5.565(e)(1).) "If the court finds the allegations are true, it conducts a dispositional hearing to determine whether removing custody is appropriate." (T.W., at p. 161, citing rule 5.565(e)(2).) A section 387 petition need not allege any new jurisdictional facts or urge different or additional grounds for dependency because a basis for juvenile court jurisdiction already exists. (T.W., at p. 1161.) "The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child." (Ibid., citing § 387, subd. (b).)
"We review the court's jurisdictional and dispositional findings for substantial evidence. [Citations.] Evidence is ' "[s]ubstantial" ' if it is ' " 'reasonable, credible, and of solid value.' " ' [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm the order even if other evidence supports a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order." (T.W., supra, 214 Cal.App.4th at pp. 1161-1162; D.D., supra, 32 Cal.App.5th at p. 990.)
The sustained supplemental petition alleged K.E. and mother were "unable to take advantage of, and benefit from, family maintenance services provided to them" because there was a "serious parental conflict" that remained "unresolved," and the "inability to properly address and treat this conflict" placed K.E. "at risk of serious harm." Mother argues a serious conflict between herself and K.E. is "not enough" to change K.E.'s placement. She maintains the petition must allege the custodial parent engaged in some "negligent or abusive" conduct, otherwise commonplace discord between a rebellious teenager and a strict parent could be used to justify removal. We disagree.
A supplemental petition need only allege facts sufficient to find the "previous disposition has been ineffective in protecting the child." (T.W., supra, 214 Cal.App.4th at pp. 1161; § 387, subd. (b).) Here, within a few months of K.E. returning to mother's home under the previous disposition order, the evidence showed K.E. was arrested for shoplifting, attempted to commit suicide, was hospitalized and diagnosed with major depression, refused to take prescribed psychotropic medication, and ran away from mother's home. The Department had referred the family to counseling and family preservation services; however, despite these efforts, the evidence showed K.E. refused to return home because she feared mother would hit her again. The evidence substantiated K.E.'s apprehension, as mother admitted hitting K.E. in the past.
Contrary to mother's contention, the evidence revealed a conflict with more peril than the familiar quarrels that occasionally surface between strict parents and rebellious children. To be sure, K.E.'s misbehavior and disobedience presented challenges that would test any parent. But mother's repeated inappropriate physical discipline also significantly contributed to the ongoing conflict, and the evidence showed it drove K.E. to run away from home, to refuse to live with mother, and to engage in other dangerous behavior that the Department could not meaningfully address with preservation services in the short term. Thus, while the evidence showed mother was justifiably concerned about K.E.'s welfare, it also established, consistent with the supplemental petition's allegation, that the conflict could not be readily resolved and it made the previous disposition ineffective for protecting the child. (T.W., supra, 214 Cal.App.4th at p. 1161; § 387, subd. (b).) This was sufficient to meet section 387's jurisdictional requirement.
2. Substantial Evidence Supports the Removal Order
"When a section 387 petition seeks to remove a minor from parental custody, the court applies the procedures and protections of section 361. [Citation.] Before a minor can be removed from the parent's custody, the court must find, 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.' " (T.W., supra, 214 Cal.App.4th at p. 1163, citing § 361, subd. (c)(1).)
"A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (T.W., supra, 214 Cal.App.4th at p. 1163.)
Mother argues the evidence was insufficient to support the removal order. She again emphasizes she had not abused or neglected K.E. since her daughter returned to her custody, and she asserts she was "fully compliant" with the court's orders. Absent evidence of abuse or a violation of the existing case plan, mother maintains the ongoing conflict with K.E. was insufficient to authorize a change of placement.
Contrary to mother's premise, the juvenile court's removal order was not based on the conflict itself; rather, it was based on evidence showing the unresolved issues between mother and K.E. led the child to engage in dangerous behavior. That evidence showed K.E. attempted to commit suicide shortly after returning to mother's custody, and upon leaving the hospital, she ran away and refused to return home because she feared mother had not changed and would hit her again. Critically, mother herself acknowledged there was no safety plan that would reliably stop K.E. from engaging in dangerous behavior, because she did not trust the teenager to follow the rules if K.E. returned to her home. Mother may not have abused K.E. after the initial placement order, but the unresolved conflict continued to pose a substantial risk to K.E. that could not be fixed in the short term while she remained in mother's custody. (See T.W., supra, 214 Cal.App.4th at p. 1163 [the parent need not be dangerous and the child need not be harmed for removal to be proper because the statute's focus is on averting harm].) The evidence supported the juvenile court's finding that the placement with mother posed a risk of serious physical harm to K.E. and that reasonable measures did not exist to protect the child without a change of placement. (§ 361, subd. (c)(1).)
3. The Juvenile Court Reasonably Exercised Its Discretion to Order Monitored Visitation
Mother contends there was "no basis" to restrict her to only four hours of monitored visits a week. She argues she "is not a danger" to K.E. and the minimum visitation time was insufficient to "re-establish" the relationship with her daughter.
The juvenile court has broad discretion in matters concerning visitation. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) In making visitation orders, the court is guided by the principle that "[v]isitation shall be as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A); In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138.) Equally important, however, is the statutory dictate that "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).) "We review an order setting visitation terms for abuse of discretion. [Citations.] We will not disturb the order unless the trial court made an arbitrary, capricious, or patently absurd determination." (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.)
Mother has not established an abuse of discretion. The evidence showed mother and K.E. had a volatile relationship that likely was not improved by K.E. running away from home after her suicide attempt. When the case began, K.E. reported verbal confrontations with mother had been going on for months. The Department became involved when those confrontations turned physical, after mother dragged K.E. by her hair and punched her in the face. K.E. also said mother hit her twice before, and mother admitted striking K.E. with an open hand. Based on this record, and the recent events that likely deepened the ongoing conflict, the juvenile court reasonably determined a monitored visitation order was needed to protect K.E. while she and mother worked to repair their relationship.
The minimum visitation order was also reasonable. Critically, the order required a minimum of four hours of visitation a week, and it authorized the Department to liberalize restrictions as K.E.'s and mother's relationship improved. The case plan also required K.E. to participate in individual counseling, and it provided for conjoint counseling with mother, if appropriate, to support their reunification efforts. In view of the ongoing conflict, the juvenile court reasonably refrained from ordering too many hours of compelled visitation before K.E. and mother had made some concrete progress toward repairing their relationship.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P. J.
DHANIDINA, J.