Opinion
G058359
04-01-2020
In re C.G., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Appellant, v. E.H. et al., Defendants and Respondents; C.G., a Minor, etc. Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for the Minor and Appellant. John P. McCurley, under appointment by the Court of Appeal, for Defendant and Respondent E.H. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Respondent A.G. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Appellant.
(Super. Ct. Nos. 17DP1140 & 17DP1140a) ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed in the above-entitled matter on April 1, 2020, is hereby MODIFIED to reflect the Orange County Superior Court correct case numbers.
This modification does not change the judgment.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 17DP1140 & 17DP1140) OPINION Appeal from a judgment of the Superior Court of Orange County, Antony C. Ufland, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for the Minor and Appellant. John P. McCurley, under appointment by the Court of Appeal, for Defendant and Respondent E.H. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Respondent A.G. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Appellant.
* * *
Two-and-a-half-year-old C.G., a dependent child, challenges the juvenile court's order declining to remove him from his mother's care despite sustaining as true a Welfare and Institutions Code section 387 petition alleging mother's custody of C.G. posed a substantial danger to him. The court found reasonable means to protect C.G. without removing him from his mother's care. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
I
FACTUAL AND PROCEDURAL BACKGROUND
Circumstances Leading to Section 300 Petition
On October 19, 2017, the Orange County Social Services Agency (SSA) detained two-month-old C.G. after his 15-year-old mother E.H. (mother), also a dependent child, was hospitalized on a psychiatric hold. SSA placed C.G. with his maternal great-grandmother. Previously, mother and C.G. had been living in a group home.
In the month before mother's hospitalization, she refused to attend therapy and anger management classes at the group home and was acting aggressively; she destroyed property and threatened to kill one of her peers. Among other risky behaviors, mother admitted using marijuana while pregnant with C.G. and being gang affiliated. There were, however, no reported concerns about mother harming C.G. C.G.'s 22-year- old father A.G. (Father) was arrested in August 2017 for violating Penal Code section 261.5, subdivision (d) (sexual intercourse with a minor under 16).
Section 300 Petition and Detention Hearing in October 2017
Upon mother's hospitalization, SSA filed a petition describing C.G. as a child within section 300, subdivision (b) (failure to protect). As sustained, the petition alleged C.G. was at risk of harm based on mother's status as a current dependent of the juvenile court, mother's "mental health and/or anger management issues" and aggressive behavior, Father's criminal history, and both parents' substance abuse issues. The juvenile court detained C.G. from both parents and ordered 10 hours of supervised visits per week for mother, to begin upon her release from the hospital. The court also authorized predispositional services for mother and scheduled a jurisdictional hearing. C.G. remained in his great-grandmother's care.
Jurisdiction and Disposition Hearing in March 2018
In November 2017, after being discharged from the hospital, mother was placed in a group home. She received counseling for parenting, for substance abuse, and anger management. She visited her son. Several weeks later, she was placed in a different group home, New Beginnings. In December 2017, SSA placed C.G. with mother at New Beginnings. Mother expressed being happy to have C.G. back in her care. Staff at the group home reported mother was doing well caring for her son and participating in anger management and therapy.
In February 2018, mother's therapist reported mother was participating in individual and group therapy and doing well; the therapist had no concerns about mother. The group home manager reported mother was attending parenting classes and doing well, apart from missing school recently due to caring for C.G. when he was sick. In March 2018, the group home manager reported mother refused to take her medication some days, but had been diligent in attending anger management sessions.
At the combined jurisdiction and disposition hearing in March 2018, the juvenile court sustained the jurisdictional allegations of the amended section 300 petition, declared C.G. a dependent of the court, removed C.G. from Father, and placed C.G. with mother. The court ordered mother to participate in family maintenance services, including therapy, anger management classes, and drug testing. Events Leading to Section 388 Petition to Remove C.G. from Mother's Care
After the March 2018 dispositional orders, mother continued to care for C.G. at the group home. She continued to participate in individual and group therapy, anger management classes, and substance abuse treatment. In May 2018, her therapist reported mother is "moody," but had been trying hard, and had made "big improvement[s]" and she was making "great progress." The therapist noted mother is starting to "open up more" and is "very attentive" to C.G. In July 2018, the group home manager reported mother had made good progress and was in compliance with all aspects of the program. According to the manager, mother occasionally needs redirection for her attitude, but is fine afterward.
Mother completed two eight-week anger management courses at the group home, but her anger flared in two incidents. The first incident occurred during a meeting at her group home in June 2018. Mother became upset because SSA had not found her a foster home or returned her home despite her belief she had complied with everything asked of her. In frustration, mother threw cereal across the table at a social worker and when the social worker left the room to make copies of the meeting report, mother wrote graffiti on the meeting room wall. Mother then ripped up the copy of the meeting report given to her.
The second incident occurred in September 2018. SSA received a referral after mother was involved in a physical altercation with a staff member at her group home. Before the fight broke out, there was obvious tension between the staff member and mother; they had returned from a disappointing daylong outing, and the two exchanged angry, hostile words during dinner, culminating in mother throwing a carton of orange juice at the staff member, who retaliated by pouring the orange juice over mother's head and then throwing the first punch. The fight lasted less than a minute and witnesses moved C.G. to safety during the fight.
The group home determined the staff member was the aggressor and fired her. The investigating social worker initially considered closing the referral as unfounded or inconclusive, but later decided to substantiate the allegations for general neglect because C.G. was present during the altercation, which mother had a hand in causing. Additionally, around this time a video circulated on social media showing mother inhaling computer cleaner to get high. The incident occurred while mother was on an approved leave from the group home; the video did not show C.G. present.
Minor's October 2018 Section 388 Petition
On October 1, 2018, C.G.'s attorney filed a section 388 petition to change the dispositional order. The petition requested C.G. be removed from mother's custody and mother be given increased services. The petition cited reports of ongoing concerns including referral allegations of mother pinching and slapping C.G., which were closed as unfounded, mother's drug patch coming off several times, and mother yelling and cussing at C.G., which mother admitted doing in his presence but denied directing the outbursts at him. Addendum reports also cited mother's physical altercation with the staff member, and her inhaling of computer cleaner. The court set an evidentiary hearing on the section 388 petition and a contested status review for October 19, 2018.
Pending that hearing, mother and son moved to a new group home on October 22, 2018. According to an addendum report, the facility manager reported mother to be attentive to C.G., playful with him, and diligent in meeting all his needs when she is not in school. The manager further reported mother is compliant, follows all group home rules, and continues to participate in group counseling, anger management, substance abuse programs, drug testing, and weekly parenting classes specific to C.G.'s current development stage. SSA recommended C.G. remain in mother's care, with continued supervision and services.
The hearing on C.G.'s section 388 petition occurred over multiple days from October to December 2018. Mother and several other witnesses testified. Before ruling, the judge noted his own observations of mother's interactions with C.G. during the course of the extended hearing: "[D]uring the various days of testimony that mother and [C.G.] were in court, . . . I had ample opportunity to observe mother and I don't think that I saw anything that would indicate . . . concern. . . . I was able to see actual firsthand interactions between mother and [C.G.] and it all appeared to be perfectly normal healthy maternal conduct with regard to [C.G.] . . . . [¶] . . . [E]ven if she's on great behavior [while in court], I think that she exhibited an extreme amount of patience and appropriate care when [C.G.] was . . . exploring the courtroom during testimony."
On December 6, 2018, at the conclusion of the evidentiary hearing, the court denied the minor's section 388 petition. As for the contested status review, the court ordered that C.G. remain in his placement with mother and continued him as a dependent of the juvenile court. The court amended mother's case plan to include anger management classes and drug treatment outside the group home. Events Leading to July 2019 Petition to Remove C.G. from Mother's Care
In January 2019, staff at mother's group home reported she was very attentive to C.G. and met all his daily needs; there were no concerns regarding her parenting of the child. Mother's therapist gave positive reports about mother's participation in sessions, and the group home manager gave generally positive reports on mother's progress, including her continued participation in parenting classes. Mother continued to take two psychotropic medications as prescribed by her psychiatrist. She also consistently tested clean through a drug patch testing program.
A low note was mother's refusal to attend the anger management program she had been assigned to attend outside her group home. Mother explained she felt unsafe in the group because of the aggressive stories others shared and uncomfortable because everyone else in the group was much older than she. As of January 31, 2019, the group home manager was searching for different anger management classes for mother to attend.
In February 2019, mother's behavior deteriorated. Group home staff reported, among other concerns, mother was defiant, agitated, threatening, and yelling at her son rather than practicing parenting techniques she had learned in the program. She was noncompliant with the facility's rules and her case plan. Because of her behavior, the group home "discharged" mother and, in April 2019, she moved with C.G. to another residential facility, Mary's Path.
At Mary's Path in April 2019, mother continued to participate in therapy, drug testing, and parenting classes; she was consistently seeing her psychiatrist; and she participated in off-site anger management and substance-abuse programs. C.G. continued to develop normally in her care. According to a May 23, 2019, status report prepared for the June 4 status review hearing, C.G. was doing well and "is a sweet, social, and adventurous little boy[.]" The social worker noted mother's strong progress at her new placement, where mother is "back on track" and displaying a "new attitude . . . . [M]other is . . . honest with her past and . . . has also been more accepting [of] receiving directives and advise [sic] for herself and for the child. [¶] The agency believes that the child is safe in the mother's care . . . . The mother's actions and defiant behaviors . . . have not translated into safety concerns for the child." The social worker even suggested the "dependency case may close at the next Six-Month Review hearing" if mother remained dedicated to her case plan services and continued testing negative for drugs and alcohol. At the June 4, 2019, status review hearing, the court ordered custody remain with mother, with continued supervision, and set a six-month review in December 2019.
Just over two weeks later, mother engaged in a disturbing act of anger-fueled violence. On June 21, 2019, mother physically attacked another resident — a pregnant teenager—at the group home. A referral from the facility informed SSA that mother leaped over a couch in the TV room to attack the other resident, hitting her in the head, choking her, pulling her hair, and kneeing her in the stomach. C.G. was sitting on the couch at the time, and mother nearly struck the child in the head with her leg as she jumped over the couch; mother later claimed she "blacked out" during the incident and could not recall the details of what happened.
The referral to SSA further recounted that for a day or so before the incident, there had been rising tension between mother and the other teen over a social media post. Mother's anger at the other girl boiled over when the girl, after calling mother "a bitch" and C.G. "annoying," changed the channel on the TV, abruptly cutting off the program C.G. was watching. After the altercation, the victim was taken to the hospital for monitoring of her pregnancy, and mother was given a 14-day notice to move out of the placement.
Shortly after the incident, mother started packing her things using a suitcase which reportedly did not belong to her. When told she could not use the suitcase, she became angry and threw it across the room. She then pulled C.G. by the arm to bring him back to their room, causing him to lose his balance and hit the door with his hip, though he was not injured. July 2019 Petition to Remove C.G. from Mother's Custody
On July 3, 2019, SSA detained C.G. at Orangewood and filed a protective custody warrant for him, which the juvenile court granted. On July 4, C.G. was placed again with his maternal great-grandmother. On July 8, 2019, SSA filed a section 387 supplemental petition to remove C.G. from mother's custody. The supplemental petition alleged C.G.'s placement had been ineffective in protecting him based on mother's failure to comply with her case plan, her conduct in physically attacking her fellow resident, thereby exposing C.G. to domestic violence, and her "unresolved mental health and/or anger management issues."
"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. (§ 387; Cal. Rules of Court, rule 5.560(c)[.])" (In re D.D. (2019) 32 Cal.App.5th 985, 989 (D.D).)
At the detention hearing on July 9, 2019, the juvenile court made prima facie findings to detain C.G. The court ordered mother to continue with case plan activities, authorized her to visit her son a minimum of six hours per week, and set further proceedings pertaining to the supplemental petition.
In the detention report filed July 9, 2019, SSA citied certain risk factors, including Mother's status as a dependent child herself, her mental health and anger management issues, former substance abuse, and the substantiated child abuse report against her (domestic violence in the child's presence); the report concluded C.G. was at "very high" risk in Mother's custody.
Pending a trial on the supplemental petition, mother visited her son consistently, the visits went well, and SSA increased visitation at mother's request. Mother also continued to receive counseling for parenting, substance-abuse, life skills, and anger management. She continued taking her prescribed psychotropic medication and to be tested for illegal drugs using a drug patch, but resisted random testing because of embarrassment at being watched urinating.
Trial and Order on Supplemental Petition for Removal
A trial on SSA's section 387 supplemental petition occurred over several dates in September 2019. The court received into evidence the detention report, jurisdiction/disposition report, two addenda, and a flash drive with a video recording of mother's June 2019 physical attack on another resident at the group home, which the court viewed several times. Mother and social worker Victoria Vonnahme testified. At trial, C.G.'s attorney joined SSA in arguing the court should remove the child from mother's custody because she posed a risk of harm to him.
The juvenile court found the petition's allegations true by a preponderance of the evidence, including the allegation the disposition has not been effective, and further found by clear and convincing evidence C.G. would be in substantial danger if he were to remain in mother's care. But the court further found there was not clear and convincing evidence "that there are no reasonable means by which [C.G.'s] physical health can be protected without removing him from mother's custody. So I'm going to decline to remove him."
The court ordered a number of services added to mother's case plan "to ensure [C.G.'s] safety, given that I'm not removing him." The additions to mother's case plan included referral to a therapeutic behavioral services (TBS) coach, wraparound services, mindful exercise, such as yoga or meditation at least once per week, and unannounced visits by the social worker. The court signaled its willingness to consider additional services to "ensure [C.G.'s] safety" and described the four specified services as "the tip of the iceberg[.] . . . I'm willing to take anybody's suggestions in adding to the case plan[.]"
The court explained at length the rationale behind the added requirement of a mindfulness exercise. "Honestly, as I indicated before, I think mother needs an outlet that physically gets the anger that builds up out[.] . . . Mother needs something that gets that physical aggression out. [¶] It builds up and it heads out and it exits her through — at individuals inappropriately and in an inappropriate manner, and so mother needs to find a way to channel that aggression that doesn't endanger other people." The court stated it viewed an effective mindfulness practice as "a critical component of [mother's] development as a parent."
After announcing its findings and order, the juvenile court addressed mother directly, warning she must "figure out a way to keep control of" her anger, "[a]s difficult as that is[.]" "I can see areas in which you are working. I can see areas in which you are progressing, where you're learning. But this can't happen." "You're going to be 18 in January. Sooner or later . . . these sorts of fights, they're going to get you in a situation where you will not be able to have custody of C.G. because you're going to be in custody." The court asked mother, "Do you understand what I'm saying?" She answered, "Yes, sir.".
The court ordered custody to remain vested with mother under SSA's supervision, ordered the addition of the specified services to her case plan, and set a six-month review date.
C.G's counsel filed the instant appeal from the order denying SSA's section 387 petition for removal.
II
DISCUSSION
"When a section 387 petition seeks to remove a minor from parental custody, the court applies the procedures and protections of section 361." (In re T.W. (2013) 214 Cal.App.4th 1154, 1163 (T.W.); In re Paul E. (1995) 39 Cal.App.4th 996, 1001-1003.) Under section 361, before removing a child from his or her parent's custody, the court must find, 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 child from the parent's custody. (§ 361, subd. (c)(1); D.D., supra, 32 Cal.App.5th at p. 996; T.W., supra, 214 Cal.App.4th at p. 1163.) Under the "clear and convincing evidence" standard, the evidence "must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind." (In re David C. (1984) 152 Cal.App.3d 1189, 1208.)
C.G challenges as erroneous the dispositional order allowing him to remain in mother's custody. More specifically, C.G. argues substantial evidence does not support the court's finding reasonable means exist to protect C.G. without removing him from mother's care. SSA joins with C.G. in requesting reversal of the dispositional order. SSA agrees with C.G. "the juvenile court's conclusion was not supported by the record[.]" SSA disagrees with C.G., however, on the proper standard of review in this appeal. A. Standard of Review
Both SSA and mother contend the substantial evidence test does not apply here and, instead, a narrower standard of review articulated in In re I.W. (2009) 180 Cal.App.4th 1517 (I.W.) applies. As SSA explains, "While dispositional findings are typically reviewed for substantial evidence, such review occurs when the requisite findings have in fact been made against the parent. (See, e.g., [] D.D.[, supra,] 32 Cal.App.5th [at p.] 990.) Here, both [C.G.] and SSA seek to reverse a dispositional order on the basis that a finding should have been made, but was not." SSA argues the present case, then, falls within the rule announced in I.W., supra, 180 Cal.App.4th 1517.
SSA's reference to a finding which "should have been made, but was not" alludes to the requested finding "by clear and convincing evidence . . . there are no reasonable means by which [C.G.'s] physical health can be protected without removing" him from Mother's custody. (§ 361, subd. (c)(1).) --------
In I.W., supra, the appellate court explained the substantial evidence test "is typically implicated when a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence." (I.W., supra, 180 Cal.App.4th at p. 1528.) But, the court stated, in a case "where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment." (Ibid.) Instead, a different standard of review applies: "[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Ibid.) SSA concedes this narrower test governs this appeal.
C.G. argues the difficult to meet standard of review articulated in I.W. should not apply "in an appeal such as this one (1) where the minor challenges the dispositional order maintaining him in mother's care, and (2) the agency bore the burden below of proving the child must be removed from that parent's care. . . . [C.G.] did not carry the burden of proving the bases, pursuant to section 361, for his removal from mother's care." (Original italics.)
We are unpersuaded by C.G.'s argument his status as "the minor" makes the holding of I.W. inapplicable here. The court in In re Luis H. (2017) 14 Cal.App.5th 1223 (Luis H.), rejected the same argument in an analogous context.
Luis H., supra, 14 Cal.App.5th 1223, two minors appealed from an order dismissing the section 300 dependency petition as to them; the minors argued substantial evidence did not support the finding they were not placed at a substantial risk of harm by their mother's failure to protect their sibling from sexual abuse. (Id. at p. 1226.) The appellate court reviewed the order under the standard articulated in I.W., supra, 180 Cal.App.4th at p. 1528, "whether the evidence compels a finding in favor of the appellant as a matter of law," and rejecting the minors' assertion the substantial evidence test applied. (Luis H., supra, 14 Cal.App.5th at p. 1227.)
The Luis H. court noted the appellant in I.W. "was also the party who bore the burden of proof in the juvenile court proceedings. Here, [the agency] bore the burden of proof at the jurisdictional hearing [citation] but only [the minors] appeal the dismissal." (Luis H., supra, 14 Cal.App.5th at p. 1226.) The court did not, however, "believe that this distinction changes the nature or standard of our review." (Ibid.)
The court explained its reasoning as follows: "[The minors] were represented by counsel who had the opportunity to present evidence at the jurisdictional hearing and who advocated for the court to sustain the dependency petition. As the children had the opportunity to produce evidence and to create a record that supported their position that they came within the jurisdiction of the juvenile court, we see no reason to depart from the general rule that 'where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.' ([]I.W., supra, 180 Cal.App.4th at p. 1528.)" (Luis H., supra, 14 Cal.App.5th at p. 1227, fn. omitted.)
Though, as C.G. argues in the reply, we are "not bound by such decisional authority from the neighboring appellate district," we find the reasoning of both I.W., supra, 180 Cal.App.4th at page 1528, and Luis H., supra, 14 Cal.App.5th at page 1227, persuasive. Consequently, we conclude we must affirm the challenged dispositional order unless the evidence compels a finding in C.G.'s and SSA's favor as a matter of law. (Ibid.) B. The Record Supports the Dispositional Order Allowing C.G. to Remain With Mother
Invoking the proper standard of review, SSA argues the record compels a finding no reasonable means to protect C.G. exist short of removing him from mother's custody. SSA points to mother's history of violent outbursts and the juvenile court's finding by clear and convincing evidence remaining in mother's care posed a substantial risk to C.G.'s well-being. Moreover, SSA argues mother has been offered numerous services designed to address her anger issues, "[y]et these services failed to prevent the outbursts—sometimes in [C.G.'s] presence—where mother lashed out in anger and even engaged in physical altercations. There was no guarantee of meaningful benefit from the more expansive, intensive services now ordered by the juvenile court."
Moreover, SSA argues "any benefit from these services would be prospective, and would not protect" C.G. now from the "ever-present risk posed by mother's anger issues." "Even assuming that the court's new mandatory service elements [] would eventually help remedy mother's anger issues and that mother would consistently participate in these services, the danger to [C.G.] remained relatively constant as of the late September [2019] hearing date."
C.G. argues "the evidence compels the lower court to remove [C.G.] from [mother's] care." The "evidence" C.G. cites are the "no longer disputed" allegations of mother's "'unresolved problem with substance abuse,'" her involuntary hospitalization "'for behaving aggressively and threatening to kill a peer,'" her conduct in "expos[ing] her son to domestic violence," and her refusal "to participate in court-ordered therapy." C.G. argues the true finding on these allegations "and the undisputed substantial danger her son faces in her care . . . compelled the lower court" to remove C.G. to protect him.
The same problem hampers the arguments of both SSA and C.G. Though they give lip service to the applicable standard of review in arguing the evidence "compels" a finding in their favor, they fail to correctly apply the test articulated in I.W., supra, 180 Cal.App.4th at page 1528. The I.W. court explained that the question "whether the evidence compels a finding in favor of the appellant as a matter of law . . . becomes" in practice, a sharper question: "whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Ibid.) It is those sharper questions which both SSA and C.G. fail to address.
Mother correctly notes C.G. points only to the evidence supporting C.G.'s position, "instances where mother was involved in physical altercations and refused to participate in case plan services. [¶] However there is a great deal of competing evidence that minor's counsel ignores in the argument." The existence of this competing evidence, of course, destroys an essential part of the argument necessary to obtain reversal: that "the appellant's evidence was . . . 'uncontradicted and unimpeached[.]'" (I.W., supra, 180 Cal.App.4th at p. 1528.)
For example, C.G. and SSA both ignore the evidence mother was capable of long periods without any angry or violent outbursts, such as the six-month period she and C.G. spent at the New Beginnings group home, from December 2017 through June 2018, when she had no disruptive incidents. The court noted these tranquil periods prove "mother can interact with individuals, staff, other residents of these homes and not react in this [angry/violent] manner. It's not an inability—it's not a total inability to control that anger and to interact and to deal with it." Regarding mother's attack on her fellow resident in June 2019, the court stated: "Mother testified she bit her lip [while dealing with insults from the other teen] for a long period of time. While this was an explosion, certainly, she is able to [control her anger]."
The court also specifically noted that before each of the two violent incidents in issue, the September 2018 fight with a staff member and June 2019 attack on the fellow resident, staff members had noticed increasing tension between mother and her antagonists, yet the staff members ignored these signs and made no effort to help mother diffuse the pressure building inside her. It was precisely this situation the court sought to address by supporting mother with "either wrap services or [a] T.B.S. coach." The court found these support services, "coming once a week, two times a week, however frequently, [could] get some of that steam out. Get some of the aggression out so that it doesn't end up in an explosion." The mindfulness practice was an additional tool "that might help to get rid of or control that anger."
SSA argued below there was no evidence the added services would be effective in helping mother tame her anger and keep C.G. safe in her custody, contending, "[W]e would be speculating a little bit as to whether or not, again, mother would participate." The juvenile court responded, "I guess my question is has evidence been presented to a clear and convincing standard that those reasonable means would be ineffective? And that's the requirement."
Elsewhere during the argument, C.G.'s counsel and SSA both contended there was no reason to believe a T.B.S. coach or wrap services would be more effective in preventing mother's angry incidents than the staff members at the group homes who were with mother "24/7." Again, the court responded these arguments were off point; the correct question was: "[I]s there evidence this . . . individual [T.B.S. coach] who comes regularly wouldn't be able to reinforce with mother to extend the honeymoon [nonviolent] period[?] . . .[¶] Is there evidence that's been presented where I can find by clear and convincing evidence that there are no reasonable means short of detaining [C.G.] in order to ensure his safety?"
The juvenile court concluded SSA and C.G.'s counsel failed to offer any evidence the added services would be ineffective in keeping C.G. safe, much less clear and convincing evidence of that fact. On appeal, SSA and C.G. also have failed to demonstrate the evidence required a finding as a matter of law that no reasonable means existed for keeping C.G. safe in mother's custody. In other words, the evidence SSA and C.G. offered below was not "(1) uncontradicted and unimpeached, and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support that finding." (I.W., supra, 180 Cal.App.4th at p. 1528, internal citation and quotations omitted.) Consequently, their appeal of the dispositional order fails.
III
DISPOSITION
The dispositional order maintaining custody with respondent mother is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.