Opinion
B303132
07-30-2020
In re S.F. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.T., Defendant and Appellant.
Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP06384) APPEAL from the jurisdictional and dispositional orders of the Superior Court of Los Angeles County, Pete R. Navarro, Commissioner. Jurisdictional order affirmed. Dispositional order reversed. Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
____________________
T.T. (mother) challenges the juvenile court's jurisdictional order assuming jurisdiction over her three daughters. After review, we conclude that mother fails to show the juvenile court's jurisdictional order is unsupported by substantial evidence. Mother hit her daughter Sa with a broom, causing bruises. Mother's physical punishment was not an isolated incident, and Sa's sister worried that mother would seriously injury Sa. We reject mother's argument that she inflicted only reasonable punishment on the children. We affirm the jurisdictional order.
Mother also challenges the portion of the juvenile court's dispositional order removing the children from her custody and placing the children with their father. Because the juvenile court failed to articulate its rationale for removing the children from mother's custody and whether there were alternative means to removing the children from mother's custody we reverse the custody dispositional order and remand the case to the juvenile court for a new dispositional hearing.
BACKGROUND
The current dependency proceedings commenced October 1, 2019. At that time, Sa was 13 years old, Se was 12 years old, and Si was 11 years old. The children were identified in numerous prior referrals identifying both father and mother as the perpetrators of physical and emotional abuse. The referrals began in 2007. In January 2018, when social workers investigated a referral, the children reported that mother and father "whoop[ed]" them but mother "stopped when she got in trouble for doing so in court."
The current proceedings commenced with a referral from father. Father reported that Se texted him, stating that mother hit Sa with a broom and that mother said she wished the children were dead. Father also reported that in 2017, mother hit Sa with a skateboard. Father indicated that the family law court had issued several orders regarding custody and visitation. According to father, mother refused to allow him to visit the children notwithstanding a family law court order permitting him visitation.
The record does not contain the complete family law court file but indicates that mother had a restraining order against father effective from 2007 through 2012. In 2017, the family law court awarded mother sole legal and physical custody of the children, and awarded father visitation the first, third, and fifth weekend of each month. Father also had visitation on Tuesday evenings. The family law court ordered both parents to complete a high conflict coparenting class. The court ordered mother to enroll the children in counseling with a licensed child therapist. The record indicates that prior to the current referral, in 2017, mother participated in a program that provided parenting classes and life skills.
1. Petition
The juvenile court sustained the following allegations under Welfare and Institutions Code section 300, subdivisions (a) and (b): Mother inappropriately disciplines Sa by repeatedly striking Sa's legs with a broom and bruising her legs. On prior occasions, mother struck Sa with objects. The inappropriate discipline places Sa and her sisters Se and Si at risk of physical abuse.
All statutory citations are to the Welfare and Institutions Code.
The juvenile court also sustained the following allegations: On prior occasions, mother inappropriately disciplined Se and Si by striking them with objects. The inappropriate discipline placed all of the children at risk of physical abuse.
2. Mother's Description of Events
Mother admitted to hitting Sa with a broom handle. Mother explained that she caught Sa viewing sexual content on the internet, and the next morning, Sa "was talking back. I had the broom in my hand and I turned around and cracked her on her kneecap with the broom handle then I sent her to her room."
Mother reported to a social worker that she believed that the girls exaggerated what happened in mother's home in order to get attention from their father. Mother admitted previously hitting the children with a belt, but stated that she did not do that frequently.
Mother reported that she suffered a miscarriage following physical abuse by father. Mother reported that father did not provide for the family and that he used controlled substances.
In November 2019, mother took a parenting education class.
3. The Children's Description of Events
Sa reported that she felt safe in mother's home, but that mother was "aggressive" and "mean." Sa confirmed mother hit her with a broom handle. Sa reported that her leg had bruises after mother hit her with the broom handle. Sa did not require medical attention. Sa reported that mother hit all three children but targeted Sa more than the others.
Se reported that she was not afraid of mother but mother was "aggressive" and "mean." Se confirmed that mother hit Sa with a broom handle and that Se texted father to report the incident. Se said that Sa was crying. Se reported that in the past, she had stopped mother from hitting both Sa and Si. Se indicated that she and her sisters fabricated the 2017 incident with the skateboard to get attention. (This was the incident that father reported to a DCFS social worker.)
Si reported feeling safe with mother. Si reported that mother was "aggressive" and "mean." Si observed mother hit Sa on the legs with a broom handle. Si also reported that Sa cried when mother hit her. Si said that mother often targeted Sa. Si was afraid that "mother will one day hurt [Sa]." According to Si, mother " 'apologized to us for the hitting.' " Si reported that mother was trying to avoid hitting them by sending them to their room as discipline. Si reiterated that she had lied about the 2017 incident involving a skateboard and explained she and her sisters lied because "they were mad at their mother."
Initially, the children were pleased about the prospect of being placed with their father. After living with father, Sa wanted to return to mother's care. Sa reported that she wanted to live with mother and continued, " 'She [mother] barely hits us. She yells at us and tells us to go to our room.' " Sa stated father told her to leave the house, saying he hoped she "would end up in jail or . . . in a foster home . . . ." Sa reported that father spanked her. Si reported that father slapped Sa's leg after Sa kicked father's groin. Sa ran away from father's home twice.
Sa believed her father sold drugs. Se observed a white powdery substance in father's garage. A social worker investigated and found no evidence that father was in possession of controlled substances.
4. Father's Version of Events
Father acknowledged that he completed a substance abuse program following a 2019 arrest for possession of a controlled substance. Father denied that the controlled substance belonged to him. Father acknowledged a prior conviction for domestic violence but claimed that mother was the aggressor. Father reported that mother attacked him multiple times. Father described mother as unable to control her anger and as unstable. According to father, he obtained an order from the family law court in 2013 when mother "kidnapped" the children and moved out of state. Father reported that he feared for the children's safety and sought to obtain custody of them.
Father stated that Sa stole money from him and was manipulative. According to father, Sa kicked him; he reported her to authorities; Sa was charged with battery.
5. Additional Information in DCFS Reports
Social workers interviewed mother's foster mother who had not seen mother or the children since June 2017. The children previously told mother's foster mother that mother would throw objects at them. According to foster mother, mother regularly became angry with the children. Mother's foster mother believed that mother stopped allowing the children to spend time with foster mother because mother was afraid the children would report mother's conduct.
In September 2019, the children's school reported that the children were doing well academically but Sa behaved aggressively with her peers.
In November 2019, DCFS reported that "[Sa] continues to act out in the care of the father and was hospitalized and placed on a psychiatric hold on 11/05/2019, after engaging in a disagreement with the father." On multiple occasions, father called law enforcement to respond to Sa's aggressive behavior.
DCFS indicated that it planned to file a first amended petition "in regard[ ] to the father's history of drug use and drug related convictions" as well as "the children's statements regarding the father's drug use and drug possession." (Boldface omitted.) DCFS did not file a first amended petition.
6. The Juvenile Court Assumes Jurisdiction and Orders the Children Placed in Father's Custody
The juvenile court assumed jurisdiction over the children.
Mother's counsel argued that the children should be placed with mother. Father's counsel requested the children be placed with father. Counsel for the children requested that the children be returned to mother's custody. Counsel referenced events that happened that day "outside . . . the court" that led counsel to believe that the children feared father. Counsel further represented: "I think that [Sa] has some behavioral issues. I think the parent she's most responsive with the behavioral issues is the mother." Counsel told the court that counsel was "worried about sending these kids back home with the father" and requested the opportunity "to address what happened outside today." Counsel asked if the court wanted the children to testify regarding their fears of physical abuse by father, and the juvenile court responded, "No."
The juvenile court ordered the children removed from mother's custody. It stated: "The court finds by clear and convincing evidence that there's substantial danger if they [the children] were to be returned to the home of the mother as to their physical health, safety, protection, or physical or emotional well-being. No reasonable means by which to protect such without removal from the mother."
The juvenile court ordered mother to attend a parenting class for teenagers and ordered her to attend individual counseling. The court ordered the children to participate in individual counseling and conjoint counseling. The court required monitored visitation for mother. The court ordered father to submit to random drug tests, take a parenting class, and attend individual counseling.
DISCUSSION
Mother challenges the juvenile court's assumption of jurisdiction over the children. Mother also challenges the juvenile court's dispositional order removing the children from her care.
Father is not a party to this appeal.
A. Substantial Evidence Supported the Juvenile Court's Assumption of Jurisdiction
We review the juvenile court's jurisdictional order for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) We " 'must determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ' "[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]." ' [Citation.]" [Citation.]' [Citation.]" (Ibid.) Evidence form a single witness may be sufficient to support the juvenile court's assumption of jurisdiction. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
"When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
Mother argues that mother and father have a lengthy history of vying in family court for custody over the children, and that this case is but a chapter of that history that should be in family court. As noted above, we do not have the complete record of proceedings in the family court. Nor does mother's argument deflect us from the task at hand, which is to review the juvenile court's jurisdictional findings for substantial evidence. Having conducted that review, we conclude substantial evidence supported the juvenile court's finding that mother inappropriately disciplined Sa by hitting her with a broom handle and thereby endangered the safety of Sa, Se, and Si and put the children at risk of physical abuse.
Mother's own statements support the finding that she inappropriately disciplined Sa. Mother explained that she "cracked her on her [Sa's] kneecap with the broom handle then I sent her to her room." Sa reported that mother hit her with the broom handle, causing her to bruise. Se and Si also observed mother hit Sa with a broom handle, and Se contemporaneously texted her father to assist the children. At the time mother hit Sa with a broom handle, she knew it was improper. In January 2018, when social workers investigated a referral, the children reported that mother and father "whoop[ed]" them but mother "stopped when she got in trouble for doing so in court." Indeed mother apologized to Sa, thus acknowledging the inappropriateness of her conduct.
Mother's use of the broom handle to hit Sa was not an isolated incident. Se reported that on multiple occasions she tried to intervene to prevent mother from hitting her sisters. Si worried that "mother will one day hurt [Sa]." Mother's foster mother recounted prior incidents when mother hit the children and after foster mother reported the hitting, mother stopped allowing her foster mother to see the children. Mother also acknowledged having hit the children with belts.
Mother unpersuasively argues that she inflicted only reasonable, not excessive punishment. (In re D.M. (2015) 242 Cal.App.4th 634, 640-641[" '[A] parent has a right to reasonably discipline his or her child and may administer reasonable punishment . . . ." ' "].) Mother's argument is based on the faulty premise that her punishment was reasonable because Sa was not bruised. Mother's claim is inconsistent with the facts viewed under the lens of our standard of review. Sa reported that she suffered bruises as a result of mother hitting her with a broom handle, and the juvenile court could have credited that evidence. Even if Sa was not bruised on the occasion mother hit her with a broom handle, the record shows that mother regularly used physical discipline with Sa, so much so that the family law court chastised mother, and Se worried that mother would seriously hurt Sa. In short, mother fails to demonstrate that her discipline was reasonable. (See In re Mariah T. (2008) 159 Cal.App.4th 428, 433; see id. at pp. 438-439 [striking child with belt on the stomach and forearms, and causing bruises on at least one occasion, sufficient to uphold jurisdiction].) "The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (In re N.M., supra, 197 Cal.App.4th at p. 165.)
Although mother points out that the physical abuse in other cases was more extreme, she does not show that her discipline in this case was reasonable. (See, e.g., In re David H. (2008) 165 Cal.App.4th 1626, 1644 [allegations that child suffered serious physical harm including bruises, red marks and welts when mother struck child 21 times with a belt, cord, or ruler if proven would be sufficient to support jurisdiction]; In re N.M. (2011) 197 Cal.App.4th 159, 169 [hitting child with broom multiple times, hitting child with a pipe, and slapping child's face supported pattern of physical abuse that warranted jurisdiction].)
As noted, the juvenile court also sustained the following allegations: On prior occasions, mother inappropriately disciplined Se and Si by striking them with objects. The inappropriate discipline placed all of the children at risk of physical abuse. Because we conclude the juvenile court properly assumed jurisdiction over the children, we therefore, need not consider the juvenile court's alternate ground for asserting jurisdiction. (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
Additionally, because the juvenile court properly assumed jurisdiction, this case is distinguishable from In re John W. (1996) 41 Cal.App.4th 961, 975-976, in which the court remanded the case to the family law court rather than to the juvenile court in order to resolve a custody issue. In John W., the appellate court explained that "[g]iven the termination of the court's jurisdiction, remand to the juvenile court would be totally inappropriate." (Id. at p. 975.) In contrast here, the juvenile court did not terminate jurisdiction.
B. The Portion of the Dispositional Order Removing the Children From Mother's Custody Must Be Reversed
Mother also challenges the juvenile court's dispositional order removing the children from her custody and placing them in father's custody. Mother does not challenge the remainder of the juvenile court's dispositional order.
"At the disposition hearing, the court must decide where the minor will live. The options 'may range from supervised custody (§ 362) to removal of the child from the home. (§ 361.) The court's principal concern is a disposition consistent with the best interests of the minor. [Citation.]' " (In re Tasman B. (1989) 210 Cal.App.3d 927, 931; In re Rodger H. (1991) 228 Cal.App.3d 1174, 1183.) The court must consider any "relevant evidence" offered by the department, the child, or the parent. (Cal. Rules of Court, rule 5.690(b).) The court "may require production of other relevant evidence on its own motion." (Ibid.)
Before the court issues a removal order, there must be "clear and convincing evidence that removal is the only way to protect the child." (In re N.M., supra, 197 Cal.App.4th at p. 170.) This high standard is reflective of the constitutional right of a parent to care for his or her children. (In re Henry V. (2004) 119 Cal.App.4th 522, 525.) Section 361, subdivision (e) provides that "[t]he court shall 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[.] . . . The court shall state the facts on which the decision to remove the minor is based." "A finding of parental abuse is not sufficient by itself to justify removing the child from the home." (In re Ashly F. (2014) 225 Cal.App.4th 803, 811; see also In re D.P. (2020) 44 Cal.App.5th 1058, 1067 ["The juvenile court erred by failing to state the facts supporting its decision to remove D.P. from mother's custody."].)
Here, the juvenile court failed to "state the facts on which the decision to remove the" children was based as required by section 361, subdivision (e). The court stated only: "The court finds by clear and convincing evidence that there's substantial danger if they were to be returned to the home of the mother as to their physical health, safety, protection, or physical or emotional well-being. No reasonable means by which to protect such without removal from the mother." The court's minute order is similarly devoid of factual support for the conclusion that there was substantial danger to the children if they remained in mother's custody.
The court was required to remove the children from mother's custody before placing them with father. (In re Miguel C. (2011) 198 Cal.App.4th 965, 970-971.)
Had the juvenile court articulated the facts supporting the substantial danger to return the children to mother, there is a reasonable probability the juvenile court may not have found clear and convincing evidence to remove the children from mother's custody. (In re Ashly F., supra, 225 Cal.App.4th at p. 811.) The record shows " 'more than an abstract possibility' " the juvenile court would have allowed the children to remain in mother's custody, as the family law court did. (In re D.P., supra, 44 Cal.App.5th at pp. 1058, 1070.) In removing the children from mother's custody and placing them in father's custody, the court refused to consider the testimony of the 11-, 12-, and 13 year-old children. The children's counsel requested the children remain in mother's custody, represented that the children "were afraid of physical abuse" from father and asked the court if the court "want[ed] to hear from the kids." The court responded, "No." Notwithstanding the importance of ordering " 'a disposition consistent with the best interests of the minor' " (In re Tasman B., supra, 210 Cal.App.3d at p. 931), the juvenile court refused to hear from the children. Nor does the record demonstrate that the juvenile court considered less drastic alternatives than removing the children from mother's care or the challenges the children faced in father's custody.
DCFS reported that father caused Sa to be placed in a psychiatric hold as well as father's boasting that he had caused Sa to be arrested. Sa reported that father spanked her. Si reported that father slapped Sa's leg. Sa ran away from father's home twice. When father accused Sa of stealing money from him, she jumped out of a moving car.
We reverse the dispositional order in so far as it removed the children from mother's custody and placed them in father's custody, and remand the case for a new dispositional hearing. On remand, the juvenile court should consider the facts at the time of the new dispositional hearing. (In re Ashly F., supra, 225 Cal.App.4th at p. 811 ["We base our disposition on the facts existing at the time of the dispositional hearing which we determined from the record on appeal. On remand, the juvenile court must make its decision based on the facts existing at the time of the further proceedings."].) In reversing the juvenile court's removal of the children from mother's custody and placing them in father's custody, we express no opinion on how the juvenile court should rule upon remand.
DISPOSITION
The juvenile court's jurisdictional order is affirmed. The juvenile court's dispositional order is reversed in so far as it removed the children from mother's custody and placed them in father's custody. The case is remanded for a new dispositional hearing.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.