Opinion
G058206
01-23-2020
In re M.S., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. C.S., Defendant and Appellant.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeanne Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19DP0387) OPINION Appeal from orders of the Superior Court of Orange County, Antony C. Ufland, Judge. Affirmed. Request for judicial notice. Granted. Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeanne Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the minor.
INTRODUCTION
To participate in a school walkathon, eight-year-old M.S. collected money from her paternal grandmother and legal guardian (C.S.), her paternal grandfather, and her father. She gave the envelope containing the collected cash to her teacher. Clipped to one $5 bill was a small black baggie with contents M.S. described as broken glass. It was methamphetamine.
Law enforcement and the Orange County Social Services Agency (SSA) were notified. Within a week, M.S. was removed from C.S.'s home and placed with a different paternal relative. SSA's investigation quickly uncovered other issues concerning C.S.'s home and her supervision of M.S. As to C.S., the Welfare and Institutions Code section 300, subdivision (b)(1) petition alleged she failed to protect M.S. from: substance abuse occurring in the family home; domestic violence between M.S.'s birth parents, both of whom had drug histories and lived at times in the family home; and other dangers, including allowing M.S.'s paternal uncle, a registered sex offender, to reside in the family home. At the April 4, 2019 detention hearing, C.S. was given eight hours per week of monitored visitation with M.S., with SSA retaining authority to lift the monitor and liberalize both the frequency and duration of C.S.'s visits.
All undesignated statutory references are to the Welfare and Institutions Code.
At the June 20, 2019 jurisdiction hearing, C.S. submitted on the petition, as amended by interlineation. All prior orders remained in effect.
A contested disposition hearing followed approximately six weeks later. The juvenile court declared M.S. a dependent child and continued her out-of-home placement with the paternal relative and C.S.'s eight hours of monitored visits per week. Family reunification services were ordered for C.S., father, and mother.
Only C.S. appeals, and she challenges the dispositional orders for out-of-home placement and monitored visitation. We affirm. Substantial evidence supports the juvenile court's decision to remove M.S. from C.S.'s home and offer family reunification services. C.S. forfeited her challenge to monitored visitation by failing to raise the issue in the juvenile court.
C.S. concluded her opening brief by stating, "[SSA] and the juvenile court must be directed to comply with [the Indian Child Welfare Act]." C.S. advised in her reply brief that this request was erroneously included in the opening brief.
FAMILY BACKGROUND AND SSA INVESTIGATION
SSA's investigation into the methamphetamine incident produced a detailed family and home portrait. M.S. was born in 2011. She initially resided with her mother, who was investigated on several occasions by SSA based on mother's reported methamphetamine use and failure to properly care for M.S.'s asthma.
M.S. always had a relationship with her paternal grandparents. In 2013, shortly after one of SSA's investigations, the probate court granted C.S.'s petition for legal guardianship of M.S.
The paternal grandfather is also M.S.'s legal guardian. When the dependency proceedings were initiated, he was undergoing cancer treatments. He was not involved in the juvenile court proceedings as a party, and he is not a party to this appeal.
M.S.'s birth parents (sometimes referred to herein as mother and father) have histories of drug abuse, including the use of methamphetamine, and drug-related criminal behavior; each has been incarcerated at various times. Father moved into a shed in the backyard of the paternal grandparents' home when M.S. was three years of age and has lived there ever since. He worked in construction and sometimes traveled out of state for employment. He was giving C.S. $300 per month to contribute to M.S.'s support; C.S. stated it was not rent.
At the time this incident was investigated, father denied he currently used illegal drugs, but admitted "he is a gambler [who] associates with people who 'use.'" When confronted, father admitted he had several recent drug arrests, but maintained they were because he was in the company of individuals who were carrying methamphetamine. Father accused mother of an ongoing drug abuse problem. Father and mother were arrested four months earlier in the shed for methamphetamine possession; father insisted the drugs belong to mother.
Mother lived in the shed off and on with father until a few months before the walkathon incident. During the investigation, she, too, denied current drug abuse. Mother and father gambled with drug users, and she acknowledged the recent arrest in the shed. Mother maintained, however, the drugs belonged to father. Mother also accused father of domestic violence.
The month before the walkathon incident, both parents entered guilty pleas to possession of a controlled substance. Mother was sentenced to 30 days in jail; father's sentencing hearing was deferred for six months.
M.S. had her own bed in the paternal grandparents' bedroom. M.S. confirmed father lived in the shed, but mother did not. Father would take her to visit mother. According to M.S., mother and father "fight a lot" and father hits mother and pulls her hair. Father smokes cigarettes, and M.S. identified a photograph of a methamphetamine pipe as something she thought she had seen in father's shed. M.S. knew father had been arrested before, but said it was "because of the mother."
When M.S. was detained, her paternal uncle and three unrelated adult males who rented rooms from C.S. also resided in the home. The paternal uncle is a registered sex offender with a criminal drug history.
C.S. initially denied drug and criminal behavior, other than marijuana use, by either of her sons. She insisted M.S.'s paternal uncle was not guilty of child annoyance allegations and pleaded guilty only upon advice of counsel. The paternal uncle has health issues that are not detailed in the appellate record, but he relies on C.S. for financial support.
Once the SSA investigation opened, C.S. insisted father and the paternal uncle move from her home. For financial reasons, she rented the other three bedrooms, the converted garage, and another small room off the kitchen to six adult males, none of whom is a relative.
Since removal from C.S.'s home, M.S. has been cared for by a paternal relative. The caretaker reported that when she came to live with her and her family, M.S., then eight years old, could not tie her own shoes and could not bathe or use the bathroom unassisted. The child expressed fear of "bad thing[s] happening" in the bathroom. The issues resolved during the time M.S. has resided with the caretaker. A pediatrician who examined M.S. thought her delays were the result of "enabling" by the paternal grandparents. M.S.'s chronic constipation resolved after the caretaker changed her diet.
JURISDICTION AND DISPOSITION HEARINGS
The jurisdiction/disposition report recommended that M.S. be declared a dependent child of the juvenile court and removed from C.S.'s home with family reunification services offered to C.S. and father, but not to mother. The goal was to return M.S. to C.S.'s care and home.
C.S., mother, and father and their respective appointed counsel were all present at the June 20, 2019 jurisdiction hearing. C.S. submitted on SSA's recommendations. The juvenile court found the allegations of the first two counts of the petition, as amended by interlineation, "true by a preponderance of [the] evidence bringing the child within the provisions of . . . section(s) 300(b)(1), (j)." M.S. was not declared a dependent child of the juvenile court at that hearing. The matter was continued for a contested disposition hearing.
The section 300, subdivision (j) allegations concerned only mother and were based on her previous failure to reunify with M.S.'s half siblings.
The disposition hearing was conducted over several court days between July 25 and August 20, 2019. SSA reports were received into evidence without objection. M.S. was seeing a therapist. She was striving to "make everyone happy [and] has the pressure to please everyone." M.S. would like to spend more time with mother, but her "grandmother is going to get mad if I say I want to spend time with my mom; I am afraid of hugging my mom in front of grandmother because I do not want my grandmother to get mad." Based on mother's substantial progress in a residential drug program, SSA recommended family reunification services for her, as well as for father and C.S.
The social worker and C.S. testified. The social worker recommended an out-of-home placement based primarily on C.S.'s poor "parenting skills and lack of knowledge, in terms of developmental stages for [M.S.]" C.S. had not taught M.S. basic hygiene and grooming skills; instead she performed these tasks for the child. The social worker was concerned C.S. would miss future developmental milestones unless C.S. improved her parenting skills. The social worker confirmed father and the paternal uncle were not residing in C.S.'s home; but she was afraid C.S. would bring the paternal uncle back home should his condition deteriorate to the point where he could no longer care for himself. The social worker was given the names of the six male renters and she "ran" their records. All were cleared, but one had a 20-year-old domestic violence incident on his record.
On direct examination, the social worker expressed concern for M.S.'s safety should she be returned to a home with so many renters; but on cross- examination by father's counsel, the social worker agreed their presence in the home was not a direct factor in her recommendation: "It's not a matter of the men. It's the matter of [C.S.]'s judgment. Is she able to supervise at all times? [To w]hich my answer is no."
C.S. also testified. Her testimony was conducted over two days. She had no explanation for the methamphetamine in the walkathon envelope. C.S. looked at the cash before M.S. took the envelope to school and did not see the drugs. C.S. was unaware of any illicit drug use by father and mother on her property. She never witnessed domestic violence between father and mother and M.S. never told her they fought. C.S. had no plans to permit father or the paternal uncle to return to her home to live; she changed the residence's locks several weeks before the disposition hearing. She had no explanation for mother and father's arrest in the shed on drug charges. She agreed the paternal uncle should not reside in the same home as M.S.
C.S. filed a request for judicial notice of the juvenile court's exhibit list from the disposition hearing, and the exhibit (which was admitted into evidence) reflecting the receipts for the new door locks. These two documents are proper subjects of judicial notice. (Evid. Code, § 452, subd. (d).) We therefore grant C.S.'s request.
On the first day of her testimony, C.S. admitted she had not seen proof of identification for every individual living in her home. Before the hearing resumed on the continued date, all the renters showed C.S. their identifications. She brought copies of five of them to the hearing. Her home has two bathrooms next to each other, off a hallway. C.S., paternal grandfather, and M.S. use one bathroom; the renters use the other. The bathroom doors have functioning locks. C.S. is certain the renters do not use the family bathroom "[b]ecause when the people come to rent, [she] only show[s] them one bathroom."
Closing arguments on the disposition issues were robust. At this point in the proceedings, SSA was still recommending an out-of-home placement for M.S.; but SSA was poised to offer family reunification service to C.S., father, and mother. M.S. expressed a strong desire to have a relationship with mother. She was concerned, however, that demonstrating feelings for mother would upset C.S.
In arguing for out-of-home placement, SSA's counsel acknowledged "some [of the agency's] concerns [were] somewhat nebulous" and reminded the juvenile court "[w]e have a sustained petition that showed a household of chaos and neglect." SSA's counsel focused first on the renters: "It doesn't matter so much whether the social worker is concerned about the borders [sic]. It matters whether your Honor is." SSA's counsel, noting C.S. was unaware of and denied the drug use and domestic violence in her own home, argued: "[T]he bottom line is she has to [know what's going on] if we have an eight-year-old child living in her care."
C.S.'s counsel asked for M.S.'s immediate return home with family maintenance services. She argued father and the paternal uncle created the risk to M.S. in the family home, and that risk had been eliminated. Since the detention hearing, C.S. had completed a parenting class and "learned . . . parenting skills, how to be protective, what's appropriate and not appropriate." C.S.'s counsel also argued against offering family reunification services to mother.
Father's counsel supported family reunification services for mother, but argued for M.S.'s return to C.S.'s care during the period of family reunification. Mother's counsel was in complete agreement with SSA's revised recommendations for disposition.
Based on the "love and affection [M.S. expressed] for both her parents and [C.S.]" M.S.'s counsel also supported SSA's revised recommendations. M.S.'s counsel noted mother recognized and supported M.S.'s desire to have C.S. in her life, but C.S. did not want M.S. to have a relationship with mother. Although some concerning conditions in C.S.'s home had changed since the detention hearing (e.g., the removal of father and paternal uncle from the home), others had not. M.S.'s counsel argued the continuing risks to M.S.'s safety stemmed from C.S.'s "either protecting herself [or] protecting her sons, but [not] protecting [M.S.] . . . [a]nd the pattern of minimizing every concern . . . . [C.S.] is denying . . . the domestic violence, the substance abuse in the home."
M.S.'s counsel also discussed "the significant amount of progress that [M.S.] has made with the caretakers currently. She's able to do things she was not able to do before. Going to the bathroom alone. Showering herself. Before . . . she was having digestive issues and even says, 'All grandparents give me is junk food,' and although she did like it, [C.S. should have] recognize[d] that you have to provide healthy foods for a child, especially at the young age of eight. [¶] [M.S.] is also now playing soccer and prior she was not because of some asthma issues. Now she's playing and she rarely uses her inhaler."
M.S. was declared a dependent of the juvenile court pursuant to section 360, subdivision (d). Citing section 361, subdivision (c)(1), the juvenile court found by clear and convincing evidence that M.S. could not safely be returned to C.S., the legal guardian with whom she resided when the dependency petition was filed. The juvenile court also rejected, by clear and convincing evidence, placement with either birth parent, with whom M.S. had not been living when the dependency proceedings were initiated. (§ 361, subd. (d).) The juvenile court expressly found mother and father were making "substantial" progress, but that C.S.'s progress to date was only "minimal."
It is not clear why the juvenile court cited section 360, subdivision (d) in asserting dependency jurisdiction over M.S. Section 360 authorizes the juvenile court to appoint a legal guardian for a child whose parents are "not interested in family maintenance or family reunification services." (Id., subd. (a).) The juvenile court may then declare the child a dependent if at least one of the conditions described in section 300 is proven true by a preponderance of the evidence. (§ 360, subd. (d).)
Here, the probate court ordered M.S.'s legal guardianship years ago. The juvenile court's section 300, subdivision (b) findings were appropriate as to legal guardian C.S. without resort to section 360, subdivision (d).
DISCUSSION
I.
SUBSTANTIAL EVIDENCE SUPPORTS M.S.'S OUT-OF-HOME PLACEMENT
The juvenile court need not wait until a child has actually been harmed before asserting dependency jurisdiction. Dependency jurisdiction may be based on finding, by a preponderance of the evidence, there is a substantial risk the child will suffer future "serious physical harm or illness, as a result of the failure or inability of . . . her . . . guardian to adequately supervise or protect the child." (§ 300, subd. (b)(1).) Once the child is declared a dependent, she cannot be removed from the legal guardian's home and physical custody unless the juvenile court finds by clear and convincing evidence that "[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 . . . guardian's . . . physical custody." (§ 361, subd. (c)(1).)
At the disposition hearing, an out-of-home placement may be justified by circumstances that were not described in the petition, or did not exist when the allegations in the dependency petition were sustained. (In re Briana V. (2015) 236 Cal.App.4th 297, 311.) "Consistent with the purpose of the dependency scheme, the question whether to return a child to parental custody is dictated by the well-being of the child at the time of the review hearing; if returning the child will create a substantial risk of detriment to his or her physical or emotional well-being [citation], placement must continue regardless of whether that detriment mirrors the harm which had required the child's removal from parental custody." (In re Joseph B. (1996) 42 Cal.App.4th 890, 900.)
On appeal, a reviewing court affirms the out-of-home dispositional order if it is supported by substantial evidence. (In re J.S. (2014) 228 Cal.App.4th 1483, 1492-1493.)
These dependency proceedings were initiated because M.S. was exposed to methamphetamine and domestic violence in C.S.'s home, where a registered sex offender also lived. These immediate issues had been addressed by the time of the jurisdiction and disposition hearings: Father and the paternal uncle no longer resided in the home, and mother and father were in drug treatment programs. But the underlying concerns were C.S.'s failure to protect M.S. from exposure to these risks and the substantial risk M.S. would suffer future harm. C.S. never saw the drug use and domestic violence that took place in her home. When confronted with strong evidence of both, C.S. denied they occurred. She demonstrated a lack of understanding of the need to put M.S.'s health, safety, and protection first.
By the time of the disposition hearing, a new risk existed in C.S.'s home. Six unrelated adult males were renting rooms inside the house and converted garage, yet C.S. did not perceive the need to confirm their identification. She relied on acquaintances who vouched for the renters, rather than undertaking any due diligence on her own. These uncontroverted facts constitute substantial evidence to support the out-of-home placement.
SSA argues in its respondent's brief that the jurisdictional finding pursuant to section 300, subdivision (b) provided "prima facie" evidence that M.S. should be removed from C.S.'s home. Not so. A jurisdictional finding pursuant to section 300, subdivision (e) (serious physical harm) is prima facie evidence the dependent child cannot safely be left in the guardian's home. The standard does not apply where, as here, jurisdiction is based on section 300, subdivision (b) (failure to protect).
SSA's recurrent characterization of the situation in C.S.'s home as "chaos" and "chaotic" is somewhat bemusing. It is not descriptive of any juvenile dependency standard or of the issues that supported M.S.'s out-of-home placement.
II.
C.S. FORFEITED A CHALLENGE TO MONITORED VISITATION
"[T]he forfeiture doctrine applies in dependency cases and the failure to object to a disposition order on a specific ground generally forfeits a [guardian's] right to pursue that issue on appeal." (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345.) Although Courts of Appeal have discretion to consider forfeited issues, that discretion "should be exercised rarely and only in cases presenting an important legal issue." (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
C.S. does not contend the monitored visitation order in this case presents an important legal issue. Rather, she asserts her "request for custody [at the disposition hearing], logically entailed objection to supervised visitation, and the juvenile court's order for supervised visitation was an express, though legally incorrect, denial of the custody request." We do not agree.
Within days after the walkathon incident, M.S. was removed from C.S.'s home, and a detention hearing on the section 300, subdivision (b)(1) petition was conducted. Monitored visits for C.S. were ordered at the April 4, 2019 detention hearing The April 30, 2019 jurisdiction/disposition report proposed continuing monitored visits with C.S., with "SSA authorized to liberalize visits as to frequency, duration, need for monitoring, restrict visitation, and reinstating original visitation order only if deemed necessary to protect the child's health and/or safety." The visitation order remained in place after the June 20, 2019 jurisdiction hearing, through several continuances of the disposition hearing, and after the dispositional orders were entered on August 20, 2019. Although C.S. was present at the detention, jurisdiction, and disposition hearings and was represented by trial counsel at every hearing, nothing in the record indicates any discussions occurred concerning monitored visitation. C.S. testified at the disposition hearing, which also included thorough arguments by SSA's and C.S.'s attorneys; but again, the requirement for continued monitored visitation was never addressed.
Having submitted to jurisdiction, C.S. appealed from the dispositional order only. Her counsel's handwritten statement on the notice of appeal did not indicate C.S. was challenging the monitored visitation requirement; it advised the appeal was taken from the "8/20/2019 Dispositional hearing - custody was removed from Legal Guardian - she was given Family Reunification and court gave mother Family reunification even though she was a bypass." C.S. raised the visitation issue for the first time on appeal. She has forfeited the issue. (In re S.C. (2006) 138 Cal.App.4th 396, 406.)
DISPOSITION
The juvenile court's dispositional orders are affirmed.
DUNNING, J. WE CONCUR: THOMPSON, ACTING P. J. GOETHALS, J.
Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.