Opinion
B302024
06-11-2020
In re K.S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. N.S., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Kimberly Roura, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CCJP02774ABC) APPEAL from orders of the Superior Court of Los Angeles County. Nichelle Blackwell, Commissioner. Affirmed. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
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N.S. (Mother) appeals from the juvenile court's orders removing her infant daughter from her custody and denying her request for unmonitored visitation with all of her children. We affirm the challenged orders.
FACTS
Mother has four children: K.S. (born 2016), A.B. (born 2017), B.B. (born 2018), and C.B. (born 2019). Carl B. (Father) is the father of the three youngest children. K.S.'s father did not participate in the dependency proceedings.
A.B.'s Death
A.B. died on November 29, 2017, when she was not quite three months old. Mother reported she left A.B. on her back on the bed after feeding her. Five to ten minutes later, she discovered that A.B. was not breathing. Mother performed CPR, but A.B. did not have a pulse when paramedics arrived.
The autopsy report listed the cause of death as "undetermined," but indicated A.B. suffered injuries consistent with physical abuse, including numerous healing rib fractures and past contusions to the brain. It was estimated the injuries occurred two to four weeks prior to death. The autopsy report also noted A.B. had bruising on her face and scrapes on her neck. A criminal investigation into A.B.'s death was initiated, but no charges against Mother or Father were filed. The detective assigned to the matter indicated there were too many "missing links" to establish the parents caused A.B.'s death, but that the ultimate decision to prosecute lay with the District Attorney's office.
Mother denied knowing how A.B. sustained her injuries, but stated she did not suspect Father, who took care of A.B. and K.S. while she was at work. Mother asserted, "We do not beat or hit our children." Father admitted he used marijuana every day for stress. He denied he hurt A.B. and stated he did not blame Mother for her death. The social worker noted there were injuries to K.S.'s eye, which may have been nonaccidental; he had redness inside and outside of his right eye, as well as a scratch on that eye.
Dependency Proceedings for K.S. and B.B.
Shortly after A.B.'s death, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition to declare K.S. a dependent of the juvenile court. Dependency jurisdiction was asserted over K.S. and he was removed from Mother's custody. B.B. was also declared a dependent of the juvenile court and removed from the parents shortly after he was born. The juvenile court sustained essentially identical factual allegations as to K.S. and B.B. under Welfare and Institutions Code section 300, subdivisions (a), (b), and (j). Specifically, the petitions alleged the children were at substantial risk of harm due to the circumstances of A.B.'s death and prior injuries, the injury to K.S.'s eye, and Father's marijuana use. Mother and Father were granted monitored visits.
All further section references are to the Welfare and Institutions Code. The subdivision (j) allegations were stricken as to K.S.
The juvenile court found it was necessary to continue dependency jurisdiction over K.S. and B.B. at review hearings held in 2018 and 2019. The court further found Mother complied with her case plan, although she was "not fully compliant." Mother was granted more time to visit with the boys, but the visits remained monitored.
Mother received a psychological evaluation in May 2019 to assist the juvenile court to determine the likelihood Mother would abuse the children, whether visitation should be unmonitored, and whether Mother would benefit from grief counseling or other counseling to help her parent her children. The psychologist observed Mother was strongly bonded with the children and recommended extending the visits with the children, but suggested taking incremental steps before the visits could be entirely unmonitored.
Psychological testing revealed Mother "[did] not share traits and history in common with parents with a known history of physically abusing their children." The psychologist concluded, "In my opinion, the mother is likely to benefit from ongoing services designed to support her relationship with her children. She should be expected to continue attending individual counseling. . . . She should be especially encouraged [in counseling] to consider the possibility that the deceased minor may have been physically abused by her father before her sudden death occurred, as otherwise, the logical conclusion would be that she [mother] perpetrated the physical child abuse in mention [sic]."
Dependency Proceedings for C.B.
C.B. was born in June 2019. DCFS filed a dependency petition for C.B. on July 16, 2019, alleging the same factual allegations as those sustained in K.S.'s and B.B.'s petitions.
The children's social worker met with Mother shortly after C.B.'s birth. Mother again denied any form of abuse or neglect of the children. She continued to deny she or Father caused A.B.'s death. She later indicated she believed A.B. sustained rib fractures from the CPR performed on her at the time of her death. When the social worker confronted Mother with the fact A.B. had healing rib fractures that were inflicted weeks before her death, Mother had no answer and refused to entertain the possibility that Father was responsible for those injuries. Mother, however, agreed to address this issue in therapy.
Mother reported she and Father broke up in January 2019 as a result of his infidelity, and he had not contacted her about the baby. She believed he was in contact with the paternal grandmother, who helped Mother with C.B. Mother lived with the maternal grandmother, but expected to move into the paternal grandmother's apartment complex through a housing program.
Father met with the social worker at the paternal grandmother's home. He stated he had been incarcerated during Mother's pregnancy with C.B., but recently was released. He confirmed he and Mother were no longer in a relationship and did not live together.
At the detention hearing, counsel for Mother, Father, and C.B. advocated for C.B. to remain in Mother's custody. DCFS requested C.B. be removed. The juvenile court allowed C.B. to remain with Mother and denied DCFS's request for a stay of the release order.
DCFS filed a petition in this court for an extraordinary writ, requesting an immediate stay and order of removal. We stayed the juvenile court's release order and authorized C.B.'s immediate removal pending further orders. We subsequently issued an alternative writ directing the juvenile court to vacate its release order and issue a new order directing removal of C.B. from Mother's custody or show cause why a peremptory writ of mandate should not issue. In making the order, we identified several facts which warranted removal under section 319, subdivision (c), including the circumstances surrounding A.B.'s injuries and death, the finding that continued jurisdiction of K.S. and B.B. was necessary for their safety, Mother's failure to progress to unmonitored visitation, Mother's continued denial that A.B. suffered abuse, Mother's reported belief "that the child's father is a good father," and her anticipated move to the paternal grandmother's apartment complex, where Father visited. (Los Angeles County Dept. of Children & Family Services v. Superior Court (July 31, 2019, B299167) [order & alternative writ of mandate].)
After the alternative writ issued, the juvenile court held another detention hearing for C.B. and found there was substantial danger to C.B. that warranted her removal from Mother's custody. At the subsequent jurisdiction hearing, Mother and Father pled no contest to the section 300, subdivision (j) allegations, which were sustained as follows:
"j-1 [¶] The child [C.B.'s] sibling [A.S.] died on 11/29/17. the child's deceased sibling was found to have physical injuries consisting of bruising, numerous healing rib fractures and numerous old brain contusions. [Mother] gave no explanation of the manner in which the deceased sibling sustained [her] injuries. The sibling's injuries were consistent with physical abuse. The injuries of the deceased sibling [were] of such a nature that would ordinar[ily] not be sustained except as the result of unreasonable or neglectful acts of the child's mother and father [], who had care, custody and control of the child's
deceased sibling. The child's siblings [K.S. and B.B.] are current dependents of the Juvenile Court due to the mother and father's unreasonable or neglectful acts of the deceased sibling. Further on 05/02/2019, the father's Family Reunification services were terminated. Said conduct by the mother and the father to the child's deceased sibling endangers the child's physical health and safety and places the child at risk of serious physical harm, damage, danger and death.
"j-2 [¶] On or about 12/24/17, the child [C.B.'s] sibling [K.S.] was medically examined and found to have sustained a detrimental and endangering condition consisting of redness inside and outside of [his] right eye. The sibling's injuries are of such a nature that would ordinarily not be sustained except as the result of neglectful acts of the mother who had care, custody and control of the sibling. The child's siblings [K.S. and B.B.] are current dependents of the Juvenile Court due to the mother's unreasonable or neglectful acts of the child's sibling. The neglectful acts of the mother endangers the child [C.B.'s] physical health and safety and places the child at risk of serious physical harm, damage, and danger."
A contested disposition hearing was held on October 31, 2019, three months after the alternative writ was issued. On the same day, the court held status review hearings for K.S. and B.B. under sections 366.21(f) and 366.22. During this consolidated hearing, the juvenile court found continued jurisdiction over K.S. and B.B. was necessary and that their return to the parents' custody would create a substantial risk of detriment. Visits remained monitored. The juvenile court further found exceptional circumstances existed to extend Mother's reunification services for K.S. past 18 months under section 352.
As to C.B., the juvenile court removed her from the parents' custody, finding there was a substantial danger to her safety and well-being if she remained in their care. The court further found no reasonable means to protect C.B. other than removal. The court ordered continued family reunification services for Mother, including housing assistance to return to Los Angeles County to facilitate visitation, and nine hours per week of monitored visits with C.B. Mother timely appealed.
Mother moved into a transitional home for individuals without children in Anaheim after C.B.'s removal. The housing program in Anaheim indicated it would help her with alternative housing if C.B. were returned to her.
DISCUSSION
Mother challenges the juvenile court's orders removing C.B. from her custody and declining to liberalize her visitation to unmonitored visits. We find no error resulted from these orders.
I. Substantial Evidence Supports the Removal Order
Mother did not contest the section 300, subdivision (j), allegations against her. Accordingly, she does not challenge the juvenile court's jurisdictional findings as to C.B. on appeal. However, Mother contends the juvenile court erred in removing C.B. from her custody because the record did not contain clear and convincing evidence of a substantial danger to C.B. if she were returned to Mother's care at the time of the October 31, 2019 disposition hearing. In support, Mother points to evidence she complied with the case plan, tested negative for drug use, developed sufficient parenting skills, attended counseling, was positively interacting with all of her children during visitation, was gainfully employed, and had ample family support. Mother also asserts there is no evidence she caused A.B.'s death or otherwise harmed any of the children. She further contends there is no evidence of any mental illness or disorders which prevent her from properly caring for C.B. We laud Mother's efforts to reunify with her children and the progress she has made in learning to parent them appropriately. However, we find there is sufficient evidence to support the court's removal order.
A dependent child may properly be removed from a parent's custody when there is clear and convincing evidence of a substantial danger to the child's health, safety, and emotional well-being that cannot be eliminated by reasonable means short of removal. (§ 361, subd. (c)(1).) A removal order is proper when there is " 'proof of a parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] "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." [Citation.] The court may consider a parent's past conduct as well as present circumstances.' [Citation.]" (In re A.S. (2011) 202 Cal.App.4th 237, 247.)
"On appeal from a dispositional order removing a child from a parent we apply the substantial evidence standard of review, keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence. [Citation.]" (In re Ashly F. (2014) 225 Cal.App.4th 803, 809; In re Hailey T. (2012) 212 Cal.App.4th 139, 146-147.)
Removal was upheld in In re Tracy Z. (1987) 195 Cal.App.3d 107 (Tracy Z.), where the father molested three minor children, and the mother was aware of the molestations. (Id. at pp. 110-111.) The parents continued to dispute the evidence of molestation, and during the 10-month period between the commencement of proceedings and the dispositional hearing did not participate in any counseling or treatment. (Id. at pp. 113-114.) The children were removed from the physical custody of their parents at the disposition hearing. (Id. at p. 110.) The father appealed, claiming the dispositional order should not be upheld because the court failed to consider less drastic alternatives than removal. (Id. at p. 113.) The appellate court disagreed. It reasoned, "Given the nature of the proven abuse to which the minors had been subjected while in the custody of their still unrepentant parents, the court had no alternative but to remove them from the home." (Id. at p. 114.)
As in Tracy Z., the record contains substantial evidence of a danger to C.B. that could not be eliminated by reasonable means short of removal. Not only did Mother refuse to admit that Father may have physically abused A.B. before her death, Mother stated she intended to resume her relationship with Father. As a result, Father would have access to another infant, placing C.B. in substantial danger.
As noted by DCFS, there remains the possibility Mother caused A.B.'s injuries because she was the only other caretaker. Our conclusion remains the same, however, whether the risk resides in Mother or Father.
Mother contends any danger to C.B. is speculative because there is no evidence she or Father caused A.B.'s death. She asserts she and Father have the right to deny they were responsible for A.B.'s death. Mother misses the mark. Leaving aside the cause of A.B.'s death, there remains the question of how she incurred numerous rib fractures and brain contusions in the weeks before she died. Mother has yet to offer a plausible explanation for these serious injuries. At first, she speculated the rib fractures were caused by CPR performed by the paramedics. When confronted with evidence that the rib fractures occurred weeks before the CPR was performed on A.B., Mother had no answer. Later, she told a social worker that then-two-month-old A.B. somehow managed to roll over and fall out of her bassinet one night. In short, Mother has entertained increasingly implausible explanations for A.B.'s injuries and has refused to contemplate the most plausible explanation—that Father hurt A.B.
Mother's refusal to acknowledge the risk Father poses to the children, particularly to an infant, is compounded by the potential that Mother may reunite with Father. Mother reported she had ended her relationship with Father in January 2019 due to his infidelity. Yet, on August 26, 2019, two months before the disposition hearing, Mother stated, "I plan on being with [Father] because he is a good man." Likewise, Father admitted he was "trying to get back together with [Mother] . . ." Mother's therapist reported Father was "still around and that mother does not have a realistic view of Dad and how he may pose a risk to the children." In September 2019, one month before the disposition hearing, Mother told C.B.'s caregiver that she and Father planned to marry within the year. She later told the caregiver and the children's social worker that she and Father were no longer in a relationship, but were committed to co-parenting.
Even if Mother does not resume a romantic relationship with Father, she continues to believe he is a good father and is committed to co-parenting with him. Under these circumstances, it is unlikely Mother will protect C.B. from Father if she is returned to Mother's care. (See In re A.F. (2016) 3 Cal.App.5th 283, 293 ["In light of mother's failure to recognize the risks to which she was exposing the minor, there was no reason to believe the conditions would not persist should the minor remain in her home."].)
Mother further contends the removal order must be reversed because the juvenile court failed to consider reasonable alternative means to protect C.B. without removing her, as required by section 361, subdivision (c). Mother asserts the juvenile court could have put in place orders to monitor Mother's ability to parent. It could also have ordered C.B. returned to her only after Mother obtained housing. According to Mother, such orders would have secured C.B.'s safety in Mother's custody.
None of these measures addresses the problem posed by Father. The juvenile court could not monitor Mother at all times to safeguard C.B. from Father. Mother fails to demonstrate that any reasonable alternative means existed besides removal. As in Tracy Z., the juvenile court had no alternative but to remove C.B. from the home given the nature of the proven abuse to which A.B. had been subjected while in the custody of Mother, who continued to deny any abuse occurred. (Tracy Z., supra, 195 Cal.App.3d at p. 114.)
II. The Juvenile Court Did Not Abuse Its Discretion to Order Monitored Visitation
Mother contends it was error to order monitored visitation for all three children. She again points to the progress she's made in her parenting skills and her compliance with the case plan. The juvenile court did not abuse its discretion to order monitored visits.
A. Standard of Review
The juvenile court has broad discretion to determine the terms and conditions of visitation. (In re Julie M. (1999) 69 Cal.App.4th 41, 48.) Only if " ' "the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citation]" ' " will we reverse such an order. (In re Stephanie M. (1994) 7 Cal.4th 295, 318, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' [Citations.]" (In re Stephanie M., supra, at pp. 318-319.)
B. Mother's Visitation
In January 2019, the caregiver reported Mother did not engage in an age-appropriate way with K.S. and struggled to properly discipline him when he threw a tantrum. K.S. had developmental delays and was prone to tantrums. In May 2019, the psychologist observed Mother was strongly bonded with the children and recommended Mother be allowed longer visits with the children. He suggested she initially be allowed to take the children individually to Mommy & Me classes without a monitor. If the facilitator's reports were positive, she should be allowed to advance to "incremental, unmonitored visitation, before group attendance [is] implemented." As a result, Mother's twice weekly visits were extended to three hours instead of two hours, but remained monitored. The juvenile court also ordered DCFS to provide Mother with referrals to a Mommy & Me program.
In July 2019, K.S.'s and B.B.'s caregivers reported that Mother "expects the caregivers to look after [ ] the children at all times." For example, Mother took B.B. to the infant play area during one visit and expected the caregivers to watch K.S. for one and a half hours. During a visit on July 24, 2019, Mother held C.B. the entire time and asked the caregiver to bring out the snacks for the boys and prepare formula for the baby. Mother also failed to bring anything for the children during her visits.
DCFS arranged for Mother to have weekly one-on-one parenting sessions designed to help Mother learn appropriate ways to parent all of her children to decrease risk factors. Mother denied the need for the parenting sessions, asserting she would not need to supervise all of her children at once because she would have help from Father and her aunt. She also expressed frustration that her visits remained monitored. After the first parenting session on July 31, 2019, the provider expressed concern regarding Mother's lack of knowledge of K.S.'s developmental delays and her denial of her inability to supervise all the children at once.
Mother continued to need the caregiver's help in August and September of 2019. After C.B. was born, Mother was assigned two doulas to help care for C.B. One of the doulas reported she helped care for C.B. while Mother visited with the boys. In August, the boys' caregivers noted Mother spent 30 to 40 percent of her visitation time with B.B. and the remainder of the time with K.S. The social worker observing her visits commented that Mother often allowed K.S. to use her phone as a distraction.
Mother continued to receive parenting instruction to meet the children's needs in September and October 2019. During one visit, she held C.B. while soothing B.B. and rocked both children to sleep. She also checked on K.S. to ensure he was safe. In another visit, she was engaged with the children and was mindful of K.S.'s developmental challenges. However, in a separate visit on October 23, 2019, without C.B. present, the caregiver noted she had trouble handling the boys.
C. Analysis
It is clear Mother made progress in learning to parent her children appropriately during her visits. However, Mother was "admittedly in the early stages of learning parenting and needed more modeling." In the mental health review, the psychologist recommended "incremental" steps to unmonitored visitation depending on a review of her progress. The record shows DCFS observed Mother closely during her visits throughout the proceedings. It was not until October 2019, just before the October 31, 2019 disposition hearing, that Mother demonstrated an ability to care for all three children without help. Mother's parenting instructor did not indicate Mother was ready for unmonitored visitation. Given these facts, the juvenile court did not abuse its discretion to continue monitored visits.
DISPOSITION
The challenged orders removing C.B. from Mother's custody and denying unmonitored visitation with the children are affirmed.
BIGELOW, P. J. We Concur:
STRATTON, J.
WILEY, J.