Opinion
G053640
01-25-2017
In re J.D. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.D., Defendant and Appellant.
Michelle L. Jarvis, 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 Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DP018920-003, DP021540-002, DP026754-001, DP026755-001, & DP026756-001) OPINION Appeal from orders of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed. Michelle L. Jarvis, 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 Minors.
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INTRODUCTION
A.D. (mother) challenges the juvenile court's dispositional orders removing five of her children from her custody, pursuant to Welfare and Institutions Code section 361. (All further statutory references are to the Welfare and Institutions Code.) The five children are J.D., M.D., D.D., T.D., and Al.D., who currently range in age from 11 to two years. As explained in detail, post, substantial evidence supports the juvenile court's findings. We affirm the orders.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In June 2009, mother's two oldest children, Jo.D. and J.D., were taken into protective custody, and were ultimately declared to be dependents of the Los Angeles County Juvenile Court, pursuant to section 300, subdivisions (b) and (j). The petition alleged that mother and her boyfriend, R.U., had a history of domestic violence, which had occurred in the children's presence, and that mother had left Jo.D. alone in a park at night without adult supervision. The children remained in mother's custody under supervision. Mother completed her case plan, and that dependency proceeding was terminated.
R.U. is the father of two of the children in the current dependency proceeding—M.D. and D.D. These children were not born at the time of the 2009 dependency proceeding.
Another dependency proceeding was initiated in July 2011 by a petition alleging general neglect of Jo.D., J.D., and M.D. by mother and by R.U. The Orange County Juvenile Court found the children came within its jurisdiction pursuant to section 300, subdivisions (b) and (j). The children remained in mother's care, under a plan of family maintenance. That dependency proceeding was terminated in April 2013.
In October 2015, mother sent a text message to a friend, stating that she was going to kill herself. The police, conducting a welfare check, found J.D. (then 10 years old), M.D. (then five years old), D.D. (then three years old), and twins T.D. and Al.D. (then one year old), home alone. Mother was located in another county, having been hospitalized for a mental health evaluation after ingesting a large amount of pills.
Jo.D., now age 17, was never involved in the current juvenile dependency proceeding.
All five of the children were placed with nonrelated, extended family members. The Orange County Social Services Agency (SSA) filed a juvenile dependency petition alleging the children came within the juvenile court's jurisdiction because they had suffered, or there was a substantial risk they would suffer, serious physical harm or illness (§ 300, subd. (b)); they had been left without any provision for support (§ 300, subd. (g)); and their siblings or half siblings had previously been dependents of the juvenile courts of Orange and Los Angeles Counties (§ 300, subd. (j)).
After detention, both mother and R.U. were granted six hours of visitation per week. Mother missed or was late to several visits. In the jurisdiction/disposition report, SSA noted: "The children have suffered undue hardship due to the mother's mental instability, her . . . domestic violence history and her inability to protect and provide for them. It is hoped that with services, the children's mother will be able to address the issues that brought the family to the attention of [SSA] and in doing so be able to provide a safe and stable environment for them."
In an addendum to the jurisdiction/disposition report, SSA recommended that M.D. and D.D. be placed in the care of their father, R.U. SSA also noted that mother "continues to demonstrate abrupt behavioral changes as there are times when she can be verbally aggressive and there are times when she demonstrates a calm demeanor." SSA's report further stated: "[Mother] has not informed the undersigned of any follow[-]through with any referrals to services given to her; she continues to blame others as to why her children are not in her care; and she tends to minimize as to why this family was brought to the attention of Social Services." M.D. and D.D. were released to R.U.'s custody and care pursuant to the Conditional Release to Intensive Supervision Program (CRISP).
Mother pleaded no contest to the petition; the juvenile court found the allegations of the petition to be true by a preponderance of the evidence, and found that the children were within the court's jurisdiction, pursuant to section 300, subdivisions (b), (g), and (j).
Following a contested dispositional hearing, the juvenile court declared all five children to be dependents of the court; found that, pursuant to section 361, subdivision (d), reasonable efforts had been made to prevent the need for the children's removal from the home; and further found that it would be detrimental to the children to vest custody in mother. The court found, by clear and convincing evidence, that section 361, subdivision (c)(1) applied. As to M.D. and D.D., the court concluded that vesting custody with R.U. was "required to serve the child[ren]'s best interest." Reunification services and visitation with all the children were ordered for mother. Also at the hearing on disposition, the court entered a restraining order protecting R.U. from mother. Mother filed a timely notice of appeal from the dispositional orders.
The juvenile court also found that removal from mother's custody was justified under section 361, subdivision (c)(5). Mother contends that section 361, subdivision (c)(5) could not justify the removal of the children from her care and custody. SSA agrees that the children had parents who were available to provide care for them, making subdivision (c)(5) inapplicable. Given our holding as to the applicability of section 361, subdivision (c)(1), we need not address subdivision (c)(5).
DISCUSSION
Mother contends on appeal that substantial evidence does not support the juvenile court's finding that there would be a substantial danger to the children's health, safety, protection, or physical or emotional well-being if the court returned the children to her care and custody. Mother contends this is especially true with respect to the three oldest children, J.D., M.D., and D.D. SSA argues, to the contrary, that the juvenile court's order "was supported by ample evidence of Mother's ongoing emotional instability and failure to remedy those issues by the time the order was entered."
In the respondent's brief, SSA misinterprets mother's argument as follows: "Mother claims . . . the three children not in Father's care could have been allowed to remain with her." The three children not in R.U.'s care are J.D., T.D., and Al.D. --------
"Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. [Citations.] The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.] The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent's past conduct as well as present circumstances. [Citation.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) We review the juvenile court's removal orders for substantial evidence. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
The juvenile court provided a thorough explanation of the findings supporting its orders. As detailed post, substantial evidence supported each of those findings.
The court found that before mother's attempted suicide in October 2015, mother's friend, who became the foster mother for J.D., T.D., and Al.D., had "complete custody" of the children Monday through Thursday, and R.U. cleaned, cooked, provided food, and took care of M.D. and D.D. (and sometimes all of the children) on the weekends, meaning mother had not been caring for the children for five to six weeks before the suicide attempt. The testimony of the foster mother and of R.U. supported this finding. Although mother denied that the foster parents spent that much time with the children, she admitted that they had provided significant babysitting assistance before her suicide attempt.
The juvenile court found that, despite an existing restraining order protecting mother from R.U., mother repeatedly communicated with R.U. and asked him to come over and take care of the children, and suggested getting back together: "It seems she uses the children to get what she needs out of various people at different times." Mother admitted that she had contact with R.U. despite the restraining order; indeed, she became pregnant by him while the restraining order was in effect.
The juvenile court also found that mother had encouraged M.D. to behave badly in R.U.'s custody so that M.D. and D.D. would be returned to her. "That M[.D.] is acting out, has hurt his brother, has attempted to hurt another child on the bus; and the reason for this aggressive behavior is because mother has told him to act badly. And I have absolutely no reason not to believe that statement, because it came directly from the CRISP worker, who spoke to M[.D.] about it." The court's findings were amply supported by the testimony of the senior social worker at CRISP, who was assigned to monitor R.U.'s custody of M.D. and D.D.
The court also focused on mother's stated desire to have custody of her children, without having the ability to do so, and expecting others, including the dependency system, to help her. Mother did not understand the danger of leaving her children alone, and believed that the ability to watch them via a camera system was a substitute for direct contact. Mother testified she did not think the children would be in danger when she left them alone, despite a previous dependency proceeding precipitated when Jo.D. disappeared in a public park for four hours after mother had intentionally left him alone for eight minutes.
In the jurisdiction/disposition report, SSA noted: "The mother has a history of mental illness, domestic violence and drug use as demonstrated by the mother leaving the children unattended, alone at the family home and then calling/texting a friend to report she was going to kill herself. The mother appears to see herself as the victim and does not demonstrate understanding that the safety and stability of her children is priority. The mother believes that she did nothing wrong as she had contacted a friend to retrieve the children. Although the mother loves the children, at this time it appears that she is unable to care for them, as she has stated being overwhelmed at times and during those times she needs the support of others." Mother failed to take responsibility for placing her children in jeopardy, thereby initiating the dependency proceeding. In December 2015, mother cursed at the assigned social worker "and stated that the [social worker] had told her that she was a good mother, and that if she is a good mother why does she not have her children in her care. The mother stated to the [social worker] that the [social worker] was responsible for her not having her children in her care." Mother testified that she was no longer friends with the foster parents because they did not help her take care of the children after T.D. and Al.D. were born.
The social worker testified as follows:
"Q And why don't you think she's taking responsibility for her children being removed from her care?
"A The mother tells me that it's social services' problem that her children are removed from her care. The mother blames it on the father for the children being removed from her care. The mother . . . , to me, minimizes.
"Q Okay. And what do you mean by 'minimizes'?
"A She doesn't take responsibility for why the children were brought into the system again.
"Q And does that concern you?
"A Yes.
"Q Why does that concern you?
"A Because she does not address the issue which is, she took an overdose of pills because she said that she could not handle this anymore."
Additionally, the SSA supervisor with authority over this case responded to the court's queries as follows:
"The Court: Would you agree with me that this mom has not received the type of referrals she really does need?
"The witness: I would agree that mom has only received, as far as I can tell, the individual therapy that can work with her. But I can also say that mom has been extremely reluctant from the start of this case.
"The Court: Reluctant to receive assistance?
"The witness: Yes.
"The Court: Is that because of trust? Is that what you're saying?
"The witness: I think it has something to do with her mistrust as well as her feelings that she didn't do anything wrong in this case.
"The Court: Have you had conversations with the mom?
"The witness: I have spoken to the mom possibly two or three times maybe.
"The Court: And did you feel that she was not accepting of her responsibility in what happened?
"The witness: Most definitely."
The court found that mother had anger management issues, despite the fact she had not physically abused the children. "[T]he fact that the children have been with [R.U.] for six months under CRISP conditions and the police keep showing up, and mother keeps pushing everybody's buttons about the children being abused, and yet every single alert goes unsubstantiated leads this court to be concerned about mother's behavior and not towards the children, while they were under her care, but even toward the children while they are not under her care. [¶] This concept that mother does not have anger management issues, because she has never lashed out at the kids that anyone is aware of, makes no sense. Mother's behavior with caretakers, with social service workers, with Mr. U[.] all lead this court to believe that she does have anger management [issues]. [¶] It is not only anger management when it comes to the children, it is anger management in society and in life." SSA's reports documented that when R.U. advised that M.D. and D.D. would miss a visit because D.D. was sick, mother and Jo.D. tried to force entrance into R.U.'s home, and the police were called. Mother's sometimes explosive personality was indicative of unresolved mental health issues, and was one of the reasons the social worker believed mother needed anger management counseling. R.U. testified that mother "blows up" whenever something bad happens, and that when she blows up at the children, she yells at them and throws things around the house, although she does not hit the children. The social worker testified that mother cursed at her and "said this was [the social worker's] fault." SSA's addendum reports for the dispositional hearing provided detailed information about mother's claims that R.U. was physically abusing M.D. and D.D., the subsequent police investigation, and the grounds for determining the allegations were inconclusive.
The evidence showed that mother displayed "erratic behavior" during visits, cancelled scheduled visits and then showed up unannounced at the foster parents' home to have an unscheduled visit, brought unauthorized individuals to visits, and had a "meltdown" during one visit. The foster mother, who monitored visits between mother and the children, reported that mother's demeanor shifted from "aggressive [and] angry" to "amicable and agreeable." On one occasion when mother saw the foster father at court with J.D., mother "blew up, lit into the foster father and scared the child." At one visit, mother became agitated after receiving a phone call, became more upset after receiving more phone calls, and left the visit early after telling the foster mother, "I can't deal with this I have too many other problems in my life." Mother cancelled one visit with J.D., Al.D., and T.D. because M.D. and D.D. would not be present, and "she wanted the visit to happen with all the boys not just the three boys." Ultimately, mother's behavior toward the foster parents required that a neutral visitation monitor be appointed. R.U. reported that following a court appearance, "mother told him that it was all his fault that the children were removed from her care. She said that she was going to 'fucking' kill him, and then individually told the paternal grandmother . . . , the paternal aunt . . . , and Mr. U[.]'s fiancé . . . , who were also present that she was going to kill them."
The juvenile court also based its dispositional orders on a finding of mother's failure to participate in her case plan. The evidence showed that mother consistently stated her refusal to participate in the case plan, as the SSA supervisor testified when asked if she knew why mother was not attending certain programs to which she had been referred: "I had spoken to mother probably in the very beginning of this case in November, and she said to me she would not be attending any of the programs that the agency was referring because she didn't trust the agency or the worker." The social worker testified that mother had failed to alleviate the problems that led to the dependency proceeding and had failed to make progress on her case plan. Mother was planning to relocate to Lancaster, but had no support system in place, other than assuming that social services would pay for daycare. As the juvenile court stated: "[S]he has not done anything that has been in the case plan, because . . . she wants help the way she wants it, and when she wants it. And the way I see that, is, she wants her kids but she wants other people to take care of them while she maintains custody."
The court expressed its concern that mother might need substance abuse treatment: "When you are abusing medication to commit suicide, that[']s substance abuse." Mother admitted that the day she tried to commit suicide, she took her brother's Xanax, and Ambien and Norco that had been prescribed for her. Mother also tested positive for marijuana in her system; she has a prescription for medical marijuana, which she continues to use.
The juvenile court also found that the only part of the case plan in which mother was participating, individual counseling, was not designed to correct the problems that had led to the dependency proceeding. "She probably does have many other complicated mental health issues, but we have no way of knowing because she has not attended any of the programs and only had this therapist for a month and a half, which by the court's asses[s]ment it is sort of a feel-good-show-up chat-about whatever I feel like talking to her about session. It is not counseling, and it's not delving into issues, and it is not being challenged to manage the problems that she has as a single mother, who is unable to cope with raising five kids while she is going to school and has financial limitations." The social worker testified that it would not be safe to place the children back in mother's custody and care because, although she had been in counseling for about a month and a half, that length of time was not long enough to show consistency in her ability to handle tough situations and to control her erratic behavior. The social worker had "received reports from people that [mother] has placed the kids with them for periods of time because she just can't handle it. I've talked to mom, and mom has said that there have been times that it would have been better if she just had the three kids and not the five."
In sum, the dispositional orders were supported by findings that were, themselves, supported by substantial evidence.
DISPOSITION
The orders are affirmed.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.