Opinion
G062896
01-24-2024
In re JOSHUA E. et al., Persons Coming Under the Juvenile Court Law. v. L.G., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Konrad E. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Nos. 23DP0257, 23DP0258, 23DP0259, 23DP0260, 23DP0261 Vibhav Mittal, Judge. Affirmed.
Konrad E. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
MOORE, ACTING P. J.
L.G.'s (Mother) five children (the children) were removed from her custody after she was arrested for battery on March 6, 2023. When Orange County Social Services Agency (SSA) researched Mother's history, it uncovered numerous prior investigations by child services agencies in different counties. SSA then filed a petition to detain the children, which the juvenile court granted. The court later held a joint disposition and jurisdiction hearing and found there was clear and convincing evidence to remove the children from Mother's custody. It also concluded SSA had made reasonable efforts to prevent the children's removal.
On appeal, Mother solely challenges the juvenile court's finding that SSA made reasonable efforts to prevent the children's removal from her custody. We are unpersuaded by her arguments. First, the record contains sufficient evidence to support the finding. Mother has not shown what other reasonable efforts SSA could have made to avoid removal. Second, the court's failure to state the basis for its reasonable efforts finding was harmless error. Thus, we affirm the order.
I
FACTS AND PROCEDURAL HISTORY
A. The Petition
The five children were born between 2012 and 2021. The four oldest children share the same father (Father). The father of the youngest child has not been found and has not participated in this case.
The children were brought into SSA's custody on March 7, 2023, the day after Mother was arrested following a physical altercation with her parents (the maternal grandparents). Prior to the altercation, Mother had been evicted from her residence in Riverside County in late February 2023, and appeared unannounced with the children at the maternal grandparents' home. The maternal grandparents had sought to remove Mother and the children from their home because there was not enough space for them.
The police report states on March 6, 2023, Mother yelled at her younger sister, i.e., the children's maternal aunt (the younger sister), for clogging the toilet. The maternal grandfather asked Mother to stop yelling, which prompted an argument between the two. The maternal grandfather appears to have either pushed or picked up and set down one of Mother's children. Mother then pushed the maternal grandfather. The maternal grandmother tried to separate them. Mother pushed and slapped the maternal grandmother several times, causing the maternal grandmother to fall and hit her head.
The younger sister stepped in and pushed Mother away from the maternal grandmother. Mother then took her shirt off and told the younger sister she was going to "'f*** her up.'" The maternal grandparents attempted to stop Mother from hitting the younger sister. Mother hit the maternal grandmother two or three times during this struggle. The younger sister wrestled Mother to the ground, and the maternal grandparents told the younger sister to go to her bedroom. Mother's older sister (the older sister) then came into the room and saw Mother push the maternal grandparents. The older sister told Mother to go outside and locked the doors after Mother had exited the house. The police arrived and arrested Mother for battery (Pen. Code, § 242) and an open traffic warrant.
After Mother's arrest, the maternal grandparents were unable and unwilling to care for the children, and the police did not have contact information for their respective fathers. So, the children were transported to Orangewood Children's Home and then later sent to different foster families. Mother was released the day after her arrest.
The five children were split among three foster families.
At the time of her arrest, there was an active restraining order between Mother and Father for domestic violence. Mother also had a recent referral for neglect with Riverside County's child services agency. The Riverside County social worker assigned to the case (Riverside social worker) had concerns about the children not attending school, limited food at their home, a red mark observed on Mother's neck that appeared to be from choking, and Mother's eviction. At the time of Mother's arrest, the three oldest children had missed 80 days of school that school year. The Riverside social worker stated Mother had avoided her for a long time. She also stated Mother had lied about her identity on two occasions.
When talking to SSA, Mother claimed the most recent case in Riverside County had been closed because nothing had been found. However, the Riverside social worker stated it had been closed because Mother moved to Orange County. Prior to Mother's move, the Riverside social worker was planning to initiate proceedings to remove the children from Mother's care.
There had also been several other referrals concerning Mother dating back to 2015 in Riverside, Orange, and Los Angeles Counties for neglect, emotional and physical abuse, and domestic violence between Mother and Father. Among other things, there were reports of the children missing numerous days of school, coming to school dirty and hungry, and showing up to daycare with dirty diapers. Prior referrals also expressed concerns of medical neglect because one child had untreated asthma, enlarged tonsils, and a speech impediment. A report from Los Angeles County in 2015 alleged Mother and Father hit the oldest child because he had a cough and could not sleep. The Los Angeles County report also alleged the children were left inside their home alone while Mother and Father smoked marijuana in their car.
SSA interviewed Mother on March 7, 2023, after her release from arrest. Mother reported she had full custody of the children and Father had not seen his four children in over a year. She had been evicted from her apartment in Riverside County and planned to rent a room from a family friend in Santa Ana or Anaheim. She denied any substance abuse and denied having a history with any child services agencies. Mother denied knowing about any of the prior child abuse referrals.
SSA also interviewed Father. He had broken up with Mother about two and a half years ago. He had not seen his four children in years and had been fighting for visitation in court. Father also reported having received phone calls from neighbors that the children were not attending school and were playing outside when it was cold and late at night.
SSA interviewed some of the older children as well. The third oldest child reported he had not been in school for over a month. He denied being left home alone and not having enough food to eat. The social worker observed a bruise on his right leg, and he disclosed the maternal grandfather had hit him with a golf club a few days prior. He also stated Mother sometimes hit him and his siblings with a belt on the knee or back as discipline. A medical examination found "'nits in his hair.'" The second oldest child stated Mother sometimes spanked the children on the buttocks.
SSA filed a juvenile dependency petition for the children on March 8, 2023 (the petition). The petition alleged there was a substantial risk the children could suffer serious physical harm or illness due to Mother's alleged (1) failure or inability to supervise or protect the children, (2) willful or negligent failure to provide the children with adequate food, shelter, or medical treatment, and (3) inability to provide regular care for the children due to substance abuse.
As supporting facts, the petition outlined the March 6, 2023 incident between Mother, maternal grandparents, and the younger sister. It also alleged (1) Mother and Father had a history of domestic violence, which the children had witnessed, and Mother had a red mark on her neck that looked to be from a choking, (2) Mother and Father had used inappropriate physical discipline on the children, (3) Mother had failed to provide basic needs such as maintaining a stable home or regularly taking the children to school, and (4) Mother had unresolved substance abuse issues.
On March 9, 2023, the juvenile court found the petition alleged a prima facie case and detained the children from parental custody.
B. SSA's Reports
On March 13, 2023, SSA provided Mother with a list of housing resources, including shelters. It also gave her a bus pass. The next day, social worker Kirkland H. met with Mother in person and discussed the services to which Mother would be referred: individual counseling, random drug testing, parent education, and anger management. They also discussed Mother's action plan. Kirkland H. informed Mother "of the importance of participating in the recommended programs for successful outcome of the case." He also gave her resources for food pantries in Orange County and a transitional housing guide.
SSA interviewed Mother about the petition's allegations. As to her arrest on March 6, 2023, Mother denied having a physical altercation with her younger sister and maternal grandparents. She claimed her arrest was only due to an outstanding traffic warrant. As to domestic violence, Mother denied having a red mark on her neck recently but admitted domestic violence had occurred in the past between her and Father. She denied any inappropriate discipline of children by herself or other family members. Mother also denied any failure to meet the children's basic needs.
Father was also interviewed about the petition. He denied physically abusing Mother but admitted he had been arrested for domestic violence and had twice completed a batterer's intervention program. He also denied that he or Mother had ever used inappropriate discipline or hit the children.
On April 4, 2023, Mother asked an SSA investigator what she needed to do to have the children returned to her care. The investigator instructed Mother "she needed to participate in services, engage in visitation, and apply what is learned from her services to her parenting."
A few days later, Mother informed Kirkland H. she had found a home and asked him to perform an assessment. Kirkland H. informed Mother the juvenile court had not instructed SSA to do a home assessment. But he asked Mother for the address so he could speak with the investigator to determine whether an assessment was appropriate.
Later in April 2023, Mother asked Kirkland H. how the children could be returned to her care. He told her "to participate in all services, including drug testing, and have positive visitation with the children."
An SSA report from early June 2023 states several of Mother's service referrals were closed because the provider had been unable to contact her. Mother was then given a list of referrals for the services in her case plan so she could self-enroll. Mother was also asked to provide SSA with any certificates of completion for the referred services, but it does not appear she submitted any prior to the disposition hearing.
Reports from late June 2023 note Mother informed Kirkland H. she was currently in random drug testing, parenting classes, domestic violence classes, and getting individual counseling. However, Mother did not provide a release of information, so SSA was unable to verify her participation in these services. Mother also requested housing resources from SSA on June 28, 2023, and SSA submitted a housing referral that same day.
Mother provided her address for a home assessment around the middle of June 2023. SSA interviewed her roommate later that month. The roommate stated Mother was a family friend she was helping. She clarified Mother was "'not living there'" but "ha[d] 'crashed on her couch'" since March 2023. The roommate was not charging Mother rent and was helping her look for her own place. SSA offered to conduct a home inspection on June 29, 2023, but it does not appear an inspection took place before the disposition hearing.
C. Hearing and Ruling
A combined jurisdiction and disposition hearing was held from June 21 to July 7, 2023 (the hearing).
At the hearing, Mother testified no physical altercation had occurred at maternal grandparents' home on March 6, 2023, and said there had only been a verbal dispute. She also claimed to have never had any involvement with social workers or child services agencies prior to the current case. Mother stated she was participating in some of her services but admitted she had not started an anger management program.
As to her housing, Mother claimed to be renting a two-bedroom, one bath apartment with a roommate and the roommate's minor sister. When Mother was told her roommate had said she was not paying rent, Mother stated, "We don't want to say that I am . . . due to personal reasons." Mother also acknowledged she was looking for her own place.
Kirkland H. testified the children were still vulnerable due to the concerns in the petition, particularly, the education and medical issues. He testified the two older children needed to get their tonsils removed and the middle child appeared to have a hyperactivity issue. The two younger children needed speech services.
As to the efforts made to keep the children in Mother's care, Kirkland H. stated he had connected her with services, but she chose to self-enroll. He had also facilitated visitation and submitted a housing referral soon after she had requested one. According to Kirkland H., SSA did not perform a home inspection after Mother requested one in April 2023 because it believed returning the children to her care was premature due to the petition's concerns. SSA later tried contacting Mother about a home inspection but "it never came into fruition." Finally, Kirkland H. testified the children would not be safe with Mother because of the petition's concerns and because her current residence had insufficient space.
The juvenile court sustained the petition but amended it to remove the allegations concerning Mother's substance abuse and the red mark on her neck. It found there was clear and convincing evidence to remove the children from Mother's custody. Likewise, it found SSA had made reasonable efforts to prevent or eliminate the need for their removal.
In its ruling, the juvenile court expressed concerns with Mother's history of domestic violence, including past abuse by Father and the March 6, 2023 incident between Mother and her family. It also found Mother was currently "in a temporary housing situation, and not a place intended to return the five kids." The court stressed that Mother's testimony was not credible as to the events of March 6, 2023, nor did it find her housing testimony credible. It explained, "considering [Mother's] denials about what took place on March 6th, 2023, and also [her] current living situation . . . [i]t's clear . . . that returning the minors to [Mother] would set the minors up to be placed in a similar, if not the same, situation as what took place on March 6th, 2023."
The juvenile court granted Mother 16 hours of unsupervised visitation with the children each week. It also granted Mother reunification services and advised her to keep engaging in her services.
As to Father, the juvenile court found insufficient evidence to remove his four children from his custody. While Father needed to address his domestic violence and marijuana issues, the court found "the evidence presented as to father didn't warrant removal -- or not returning the minors to his custody, in light of the positive visits, statements of the minors, and significantly the statements of father's girlfriend." The four oldest children were placed in Father's custody, while the youngest child remained in foster care since his father could not be located. The court ordered Mother and Father not to have contact in front of the children while they worked on their coparenting skills.
The juvenile court set a six-month review hearing in early January 2024. However, it ordered SSA to submit an ex parte application within a month, "to address [Mother's] housing, the [children's] schooling plans, and any recommendations to amend the custody and visitation schedule." The court explained, "When we get the ex parte, the Court can potentially set a progress review at that time, or, if necessary, set a further ex parte so we're getting information as soon as possible in this matter."
Mother appeals the children's removal from her custody. She argues the juvenile court did not explain the factual grounds for its finding that SSA made reasonable efforts to prevent the children's removal from her care. She also contends there is insufficient evidence SSA made reasonable efforts to avoid removal.
II
DISCUSSION
A. Applicable Law
A dependent child may be removed from his or her parent's physical custody if 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 minor's parent's . . . physical custody." (Welf. & Inst. Code, § 361, subd. (c)(1).)
All further undesignated statutory references are to the Welfare and Institutions Code.
For removal, the court must also "find[] clear and convincing evidence that . . . there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the child's parent's . . . physical custody." (§ 361, subd. (d).) "The 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." (§ 361, subd. (e).) Failure to state the factual grounds for such a finding is error. (In re Basilio T. (1992) 4 Cal.App.4th 155, 171, superseded on other grounds in In re M.M. (2015) 240 Cal.App.4th 703, 720.)
B. Sufficiency of the Evidence
"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 [juvenile] court was required to make its order based on the higher standard of clear and convincing evidence." (In re Ashly F. (2014) 225 Cal.App.4th 803, 809 (Ashly F).)
Before discussing SSA's efforts to prevent removal, we first examine the juvenile court's reasons for removing the children. The court's decision was primarily driven by Mother's (1) history of violence and anger, including domestic violence with Father and the March 6, 2023 incident, (2) denial that she was physically violent on March 6, 2023, and (3) current housing instability. Due to these concerns, the court found the children's physical and emotional health could only be protected by removing them from Mother's custody. (§ 361, subd. (d).) There is substantial evidence SSA made reasonable efforts to prevent the children's removal by offering Mother services and housing support to address these issues. (See, e.g., In re D.D. (2019) 32 Cal.App.5th 985, 997 [reasonable efforts made where the mother was provided with extensive services]; In re Javier G. (2006) 137 Cal.App.4th 453, 464 [same].)
As to services, Mother was assigned anger management classes to learn conflict resolution without resorting to anger and parent education to learn appropriate parenting techniques. She was also referred to individual counseling to address the events leading to the petition as well as past trauma. SSA continually stressed to Mother the importance of participating in services to get back custody of the children. Indeed, SSA's reports note that Mother "wanted to participate in recommended services to have the children returned to her care." However, as of the date of the hearing, Mother had not completed any of her services. Nor had she started anger management classes.
SSA also assisted Mother with securing stable housing. In March 2023, after Mother was released from arrest, she represented to SSA that she planned to rent a room from a family friend in Santa Ana or Anaheim. Thus, there was no reason for SSA to believe Mother needed any housing assistance. Still, SSA provided her with a list of housing resources, including shelters, as well as a transitional housing guide. Then, in June 2023, SSA promptly submitted a housing referral for Mother after she requested one.
In response, Mother argues SSA could have done more to prevent the children's removal. However, SSA was only required to make reasonable efforts under section 361, subdivision (e). As such, even if SSA could have made additional efforts, that does not mean the efforts set forth above were insufficient under the statute. Besides, we are not persuaded by Mother's arguments.
First, Mother contends she informed SSA of her homelessness on March 7, 2023, but SSA did not discuss any options for retaining her children such as shelter care referrals or housing assistance. As discussed above, though, SSA provided Mother with a list of housing resources and a transitional housing guide in early March 2023. Also, in the same March 7 interview where Mother informed SSA she was homeless, SSA "asked [her] where she planned to reside, and she said she had some family friends who would rent her a room in Santa Ana or Anaheim." She later informed SSA in early April 2023 that she had found a new apartment. Based on Mother's representations, SSA had no reason to believe she needed additional housing assistance at this time.
Moreover, in early March 2023, Mother had just been arrested for battery after a violent altercation with her family members. SSA needed time to investigate Mother's history to determine whether the children could be safely returned to her. Indeed, a social worker informed Mother on March 7, 2023 that SSA "would need to conduct an investigation prior to any release of the children to her custody." Thus, it was reasonable for SSA to refrain from discussing reunification plans with Mother at this time.
Second, Mother contends SSA did not perform a housing assessment in early April 2023 when she first informed SSA of her new apartment. She also cites several conversations she had with different social workers in March and April of 2023 in which they did not discuss her reunification with the children. But, as Kirkland H. testified, SSA did not perform an inspection in April 2023 because it did not think returning the children to Mother was appropriate at that time due to the concerns in the petition. Mother has not shown these concerns were unreasonable.
Further, it is unclear how performing a housing assessment in April 2023 would have helped Mother. There was evidence at the hearing that the two-bedroom apartment where Mother was staying had insufficient space for the children. And, as the juvenile court concluded, the apartment was "a temporary housing situation, and not a place intended to return the five kids." There is no reason to think these conclusions would have been different had SSA assessed the apartment in April 2023.
Third, Mother argues there were other steps SSA could have taken to avoid the children's removal, including intensive therapy, in-home counseling services, unannounced visits by SSA, or public health nursing services. But Mother only offers a conclusory argument that failure to offer these services was unreasonable without any elaboration. It is unclear how intensive therapy or in-home counseling services would have prevented removal when Mother was already assigned counseling and anger management services. It is also unclear how public health nursing services and unannounced visits would have addressed the court's concerns regarding Mother's housing instability or her denials of engaging in physical violence on March 6, 2023.
We are also unpersuaded by Mother's citation to Ashly F. In Ashly F., the children at issue lived in the same home with their mother and father. The mother physically abused the children, but the father was unaware of the abuse. (Ashley F., 225 Cal.App.4th at p. 806.) The dependency petition alleged the children were at risk of physical harm due to the mother's physical abuse and the father's failure to protect them. The juvenile court sustained the petition and removed the children from their parents' home. It found reasonable efforts had been made to prevent or eliminate the children's removal but failed to describe those efforts. (Id. at pp. 806-808.) The appellate court ruled there was insufficient evidence to support this finding. It reasoned that by the time of the disposition hearing, the mother had expressed remorse for her actions, the father had completed a parenting class, and the child services agency had not considered removing the mother from the home and allowing the children to continue living there with their non-abusive father. (Id. at p. 810.)
There are three significant distinctions here. First, Mother has not accepted responsibility for any of the issues in this case. She has continued to deny engaging in physical violence on March 6, 2023. And this denial fits within a larger pattern of denials and misrepresentations, such as denying knowledge of prior investigations by child services agencies, misrepresenting her identity to the Riverside social worker, claiming the most recent referral in Riverside County had been closed because nothing was found, and reporting she had found stable housing when she was only "'crash[ing] on her [friend's] couch.'" Second, at the time of the hearing, Mother's participation in services could not be verified. Third, the children only lived with Mother. There was no option of removing Mother from the home and allowing the children to remain in the home with another parent. Given these factors, the court could reasonably conclude the children would still be at risk of harm if returned to Mother's care.
C. Failure to State Findings
Mother also argues the juvenile court erred by failing to state the facts supporting its finding that SSA engaged in reasonable efforts to prevent the children's removal. But she did not object below. As such, her argument is waived. "'"An appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method." [Citation.]' [Citation.] This is the general rule, because any other rule would allow a party to deliberately stand by in silence and permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable." (In re G.C. (2013) 216 Cal.App.4th 1391, 1398.) Here, an "objection would have . . . ensured that the court made the required findings. Instead of raising these procedural matters in the [juvenile] court, [Mother] now belatedly seeks to avoid a result that turned out to be unfavorable. Accordingly, we will not consider this issue for the first time on appeal." (Id. at p. 1399.)
Besides, we are not persuaded by Mother's argument. The juvenile court's failure to state the basis for its reasonable efforts finding was harmless error. It is not reasonably probable the court's ruling would have changed had Mother objected and asked the court to state the facts underlying this finding. (See In re Jason L. (1990) 222 Cal.App.3d 1206, 1218 [stating harmless error standard].) Rather, in all likelihood, the court would have explained that SSA's offer of services, facilitation of visitation, and housing referral were reasonable efforts. This is especially true given Mother's inability to show any other reasonable efforts SSA could have made to avoid removal.
Finally, we note the juvenile court actively sought to return the children to Mother's custody as soon as it was safe. It ordered SSA to file an ex parte application within a month of its order so it could reassess Mother's progress and determine whether to revise the custody order. We commend the court for its proactive approach in ensuring the children were not out of Mother's custody for longer than necessary.
III DISPOSITION
The order of the juvenile court is affirmed.
WE CONCUR: SANCHEZ, J. MOTOIKE, J.