Opinion
E069497
09-14-2018
In re G.G. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.G., Defendant and Appellant.
Lauren K. Johnson for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J272566, J272567, J272568, J272569, J272570, J272571 & J272572) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Lauren K. Johnson for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
T.G. (Mother) is the mother of seven children currently ranging in age from three to 16 years old. The children were removed from Mother's care due to Mother's mental health and substance abuse issues, domestic violence in the home, and general neglect of the children. Following a contested jurisdictional/dispositional hearing, the juvenile court found the allegations in the Welfare and Institutions Code section 300 petitions true and removed the children from Mother's care. On appeal, Mother argues that there was insufficient evidence to support the juvenile court's jurisdictional findings, and dispositional findings removing the children from her care. We reject Mother's contentions and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
H.G. (Father) is the father of the six younger children. Father is not a party to this appeal.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and Family Services (CFS) on August 25, 2017, when an immediate response referral was received alleging general neglect and emotional abuse to seven children: 15-year-old J.G., nine-year-old H.G., eight-year-old T.G., six-year-old G.G., five-year-old V.G., three-year-old C.G., and two-year-old Ga.G. The concern was that Mother was verbally aggressive with J.G., threatened the child in the presence of law enforcement, and J.G. was " 'in fear for his safety and the safety of his siblings.' " The referral indicated that for the past two months Mother and the younger six children resided in the garage, which was located behind the maternal grandmother's home. Initially, Mother allowed the children to go inside the maternal grandmother's home to use the bathroom and to shower. However, after Mother's disagreements with the maternal grandmother and the maternal uncle, she forbade the children from entering the maternal grandmother's home and barricaded herself and the six younger children in the garage. As such, the children used the planters in front of the maternal grandmother's home to urinate and to defecate. J.G. also disclosed to the reporting party that Mother had a gun and a taser. J.G. heard Mother threaten to tase and to shoot his maternal grandmother and uncle. The whereabouts of the six younger children were unknown at the time of the referral. Mother had met Father the previous night and allowed him to take the children.
The social worker met with J.G. on August 25, 2017. In addition to the concerns outlined in the referral, J.G. disclosed that Mother continuously argued with his grandmother and uncle and threatened to burn down his grandmother's home. Mother also threatened J.G., called J.G. names, and slapped him on his face. J.G. disclosed that Mother wanted nothing to do with him and told him she considered him dead to her. J.G. also stated that Mother and his siblings moved to the maternal grandmother's home around Christmas 2016, but later, unprovoked, Mother moved into the garage in the back of the house and took her six younger children with her. According to J.G., neither the maternal grandmother nor the uncle asked Mother to move. J.G. also confirmed that Mother had tied a rope on the garage door so that his six younger siblings could not go into the grandmother's house. Although J.G. stated that his grandmother and uncle never used corporal punishment, he recalled an incident where his uncle "smacked" H.G. for failing to listen to him when he had asked H.G. not to play outside without his shoes and in his pajamas. J.G. noted that the smack did not leave any marks and H.G. was not hurt and that his uncle smacked H.G. "just to make a point and get his attention." When asked about his younger siblings' father, J.G. stated that he had concerns about him because he had seen his stepfather engage in domestic violence with Mother and believed his stepfather used drugs. J.G. did not believe Mother would hurt his siblings with a gun or taser.
The social worker also met with the maternal grandmother and maternal uncle on August 25, 2017. The social worker examined the garage where she saw the rope Mother had tied to the door handle to keep the younger children from going into the maternal grandmother's home. The social worker also observed gnats and flies hanging around a pile of dirty dishes on the bed. The maternal grandmother showed the social worker the planters outside which smelled like feces and which contained bags of feces. Both the maternal grandmother and the maternal uncle denied asking Mother to move into the garage and not allowing the children to come inside to use the restroom and to shower. The maternal grandmother believed that Mother used methamphetamine because she observed Mother's severe weight loss along with the instances when Mother would go into depressive states where Mother slept all day followed by days when Mother was full of energy and engaged with the children. The maternal grandmother was also concerned about Mother's mental health. The maternal grandmother further reported that Mother had threatened to tase her and the maternal uncle until they were "foaming at the mouth" and then to shoot them in the chest so they could die "a slow death," and finally, to set the maternal grandmother's home on fire. The maternal grandmother stated that she was afraid of Mother and that she went to court to obtain a restraining order. The maternal grandmother was also concerned that the children had not been enrolled in school in a year. She, however, helped J.G. enroll in a high school. Pursuant to a safety plan, J.G. remained placed with the maternal grandmother.
The maternal grandmother confirmed that Mother's current husband, Father, slapped Mother and the children, and that the children were afraid of him and never wanted to see him. The maternal uncle acknowledged that he had smacked H.G. in his face for failing to listen and playing outside without his shoes. The maternal uncle also explained that he had spoken to H.G. about being responsible but H.G. was not saying anything but "giving him a smirk." The maternal uncle then smacked H.G. H.G. was fine and he walked away, but as soon as he saw his mother, H.G. began to scream and cry. Mother called the police, and the maternal uncle was arrested and had to appear in court.
On August 25, 2017, the social worker made telephonic contact with Mother. Mother informed the social worker that she had dropped off the six younger children with their father, however, she did not have his address or his phone number. Mother stated that she had no concerns about Father caring for the children because he was sober and had his own place. Mother denied having threatened the maternal grandmother and the maternal uncle. She reported that the maternal grandmother treated her and the children badly, forced them to live in the garage, and had the sheriff escort Mother off the property. Mother also denied using drugs and said the maternal grandmother was a drunk. During her investigation, the social worker also discovered that Mother had a prior family maintenance case in 2013 due to domestic violence and drug abuse by both Mother and Father. Mother had admitted to using methamphetamine on and off for 15 years, having tested positive for drugs at V.G.'s birth, and using drugs during her pregnancy with C.G. Mother also admitted that the parents hit each other.
On August 28, 2017, the social worker learned that Mother and her six younger children were at a motel in Pomona and obtained a warrant to detain the children. Mother was arrested on August 28, 2017, for being under the influence while in the immediate possession of a loaded, operable firearm and was incarcerated. She also had an arrest for driving under the influence in 2003.
The social worker detained the children and spoke with them. The children confirmed that they moved in with the maternal grandmother around Christmas 2016 and that they used to reside in the house where they had access to the bathroom. However, they moved into the garage and Mother told them they should not go into the house anymore. As a result, the children would "poop and pee in a bucket" or Mother would make them put diapers on to defecate or to urinate, and sometimes they would go to a fast-food restaurant to use the restroom. H.G. reported that he felt mad when he thought about his father because he used to hit them and slap them with his hand. T.G. reported that Mother and Father yelled at each other and called each other names, but denied seeing them hurt each other. The children also confirmed that they had not been attending school and described living in the garage as "really fun."
On August 30, 2017, CFS filed petitions on behalf of the children pursuant to section 300, subdivisions (b) (failure to protect), (g) (no provision for support) and (j) (abuse of sibling). The allegations included Mother and Father's history of substance abuse, history of engaging in domestic violence, history with CFS, Mother's unknown mental health condition, Father's ability to provide care for the children, Mother's incarceration status, and Mother's threats to tase J.G. which placed his siblings at a similar risk of abuse.
The detention hearing was held on August 31, 2017. Mother was not transported to the detention hearing due to a court conflict. As a result, the court made temporary findings and orders and ordered Mother transported the following day for a further detention hearing.
Mother was present and out of custody at the further detention hearing on September 1, 2017. At that time, the children were formally detained and Mother was granted visitation a minimum of one time per week for two hours. Mother's counsel indicated that Mother did not have a permanent address at the time, but she was attempting to get a residence in Chino Hills. During the paternity inquiry, Mother indicated that J.G.'s father passed away three years before and that Mother received monthly social security payments as survivor's benefits. The juvenile court ordered Mother to drug test and advised that failure to test or refusal to test would result as a positive drug test.
The social worker recommended that the g-9 allegation be found not true, to sustain the remainder of the allegations, to remove the children from Mother's custody, and to offer reunification services to Mother. On September 5, 2017, the social worker met with Mother at the sheriff's station. Mother stated that she and the children had resided in Nevada from September 2016 until Christmas 2016, when she and the children moved into the maternal grandmother's home. Mother also reported that she was a licensed nurse, but she no longer believed in working with conventional medicine. As a result, she was working as a holistic nurse. Mother reported that her clients did not pay her with money, but rather used a bartering system: if she needed food or furniture, her clients would provide them to her in exchange for her help. Mother also claimed that she wanted to travel with a group of physicians to South America, Jordan, and Tibet, because she had come up with a cure for breast cancer. Mother was going to share the cure with the world but the maternal grandmother stopped her from leaving the country with the children. Mother also noted that she bought a gun due to incidents when Father hit her and sexually assaulted her. Mother also stated that Father hit T.G. in the face, tried to suffocate T.G. when she was two years old, and called the children names, such as "morons." Mother further claimed that the paternal grandmother was putting spells on both of them. Mother also explained that she bought a taser after the maternal uncle hit H.G. Mother claimed that she never threatened to tase J.G., but rather said it as a joke. Mother further reported that the children had been enrolled in the online Language Academy in Nevada. Mother claimed that through the online school her children were supposed to learn five different languages by the time they graduated from high school.
During the jurisdictional/dispositional hearing on September 22, 2017, Mother stated she was a psychiatric nurse in Nevada, but a licensed vocational nurse in California.
When the social worker discussed the allegations with Mother, Mother admitted that she had used methamphetamine before V.G. was born, but denied current substance abuse issues. Mother's drug result test was negative on September 1, 2017, and she did not show to the testing site for the September 14, 2017 drug test. Mother stated that she was compliant with the court in the past, but she had refused to sign any paperwork for CFS to set up her services three separate times. She also refused to participate in any services in this case because she had already completed them with the court during her last case. She reported a sexual assault by a friend's relative as a child and stated that she suffered from Graves Disease (overactive thyroid) and skin issues.
Mother further stated that she did not want the children immunized. The social worker reported that she was informed by the nurse at the children's elementary school that California law required all children be immunized and that vaccines were required for entry into school and childcare. The social worker asked that the children be allowed to continue school without vaccines pending the jurisdictional/dispositional hearing. Father believed his children should be immunized.
V.G. and C.G. reported to the social worker that living in the garage with Mother was fun. T.G. added that there were rats in the garage. V.G. stated that, at first, the children were allowed to use the restroom and the shower at the maternal grandmother's home, but later Mother told them they could not do it anymore. V.G. verified that she had not gone to school when she resided with Mother. J.G. reported that sometimes Mother would say things that did not make sense. He provided an example when Mother stated: " 'Marshall Law was invoked and nuclear winter was going to happen.' " About two months ago, Mother made another statement saying, "I am Lilith, reincarnated" and J.G. had no idea what it meant. H.G. also reported that Mother did not make sense at times. With respect to domestic violence, J.G. recalled that "There was a lot of yelling and screaming [when he lived with Mother and stepfather] and once he saw [his stepfather] man handling his mother." H.G. remembered that Mother and Father would argue a lot but denied witnessing them hurting each other. H.G. also noted that Mother and the maternal grandmother always argued. G.G. reported that she saw her Mother and Father kicking and punching each other so she ran away to hide. T.G. stated that Mother and Father yelled a lot but denied seeing any physical violence. J.G., H.G. and T.G. confirmed that they did not attend an online school or any other school when they moved to Nevada. J.G. was concerned that his siblings V.G. and T.G. could not even read their birthday cards when they recently received them for their birthdays. He stated that G.G. ended up with a urinary tract infection when she would urinate on the floor because Mother would barricade herself in the bathroom for hours. J.G. also recounted an incident when Mother got very angry with him, grabbed him by his hair, punched him in the face, and when J.G. fell, Mother continued to hit him while he was on the floor.
Father admitted to constant arguing with Mother during their marriage, but denied physically or sexually abusing Mother. He reported to the social worker that Mother could go from "zero to sixty in the blink of an eye," she would freak out and scream, and she would get so enraged that he had to hold her to prevent her from hurting herself. As a result, he felt he had no option but to walk away from the relationship. Father recalled that when Mother used methamphetamines in the past, she would stay up all night and at times her conversations did not make sense.
Additionally, the social worker reported incidents during Mother's visits with the children. On September 5, 2017, Mother became very upset when H.G.'s foster parent gave the social worker a copy of H.G.'s physical, and asked if he had been immunized. Mother began yelling at the social worker and stated CFS had poisoned her children. The social worker informed Mother that there had been a misunderstanding and that H.G. had not been immunized. On that same visit, the social worker noted that Mother fell asleep during the visit.
At the September 13, 2017 visit, Mother gave J.G. a dirty look when she entered. In addition, when Mother saw the maternal grandmother at the visitation site, she stated to her: " 'You're going to pay for this you bitch!' " Despite the social worker's plea to acknowledge J.G., Mother ignored J.G. during the entire visit while acknowledging the younger children. She stated that she was "very angry" at J.G. and that the social worker should not have forced his presence on her. In addition, Mother told the children she had gotten a house and they would be together soon. When it was time for her to leave, Mother became very angry with the social worker, saying the social worker had lied and that she was going to get her children back at the next court hearing, used profanity, and was escorted out from the visitation site by security.
On September 22, 2017, CFS provided additional information to the court regarding further incidents during Mother's visits. During the visit on September 20, 2017, Mother yelled profanities at the social worker, refused to leave CFS premises after the visit, and yelled at security guards at the main entrance of the office. The six younger children witnessed Mother's behavior resulting in C.G. and Ga.G. crying inconsolably. After discussing the incident with management, the following day, the social worker filed a police report against Mother. CFS requested that Mother's visits be suspended as they were detrimental to the children.
On September 22, 2017, the juvenile court held the initial jurisdictional/dispositional hearing. At that time, Father consented to the children being immunized over Mother's objection. In addition, the juvenile court ordered visits to Mother be suspended with authority to resume Mother's visits when she made progress in therapy. The court also ordered Mother to undergo a psychological evaluation, which Mother agreed to attend. The court further ordered the parents to participate in mediation and a pretrial conference.
On October 2, 2017, Mother filed a notice of appeal from the juvenile court's orders suspending Mother's visits and allowing the children to be immunized. On October 23, 2017, this court dismissed Mother's appeal on its own motion as premature.
On October 20, 2017, Mother participated in a psychological evaluation with Dr. Julie Yang. During the evaluation, Mother engaged in a moderate level of minimization and was reluctant to report information. Although Mother denied any history of hallucinations, she reported a general paranoid feeling that people were against her. Regarding her substance abuse, Mother reported that in 2012, she used methamphetamines twice a month for a period of six months. She last used methamphetamines in April 2015, and last used marijuana in January 2017. Mother reported experiencing paranoia with marijuana use. Dr. Yang noted that Mother was unable to take responsibility for her actions and directed blame toward others. Mother also expressed resentment toward J.G. In the section dedicated to behavioral observation and mental status, Dr. Yang noted that Mother appeared to have some grandiose ideas (e.g. cure for breast cancer) and presented with a sense of general paranoia. Furthermore, Dr. Yang reported that Mother's judgment, insight into her problems, and impulse control were poor. Dr. Yang diagnosed Mother with "Posttraumatic Stress Disorder" (PTSD), "Substance Use Disorder" (cannabis and amphetamine use), and "Other Specified Personality Disorder, Mixed Personality Features." Dr. Yang recommended individual counseling, substance abuse treatment, parenting classes, domestic violence classes, and continued education about and treatment of Mother's mental health issues. Dr. Yang did not believe psychotropic medications were warranted at that time.
On October 25, 2017, Mother participated in mediation but no agreement was reached on jurisdiction or disposition. Father, however, submitted to several allegations and signed a waiver of rights. The juvenile court set the matter for a contested jurisdictional/dispositional hearing.
The contested jurisdictional/dispositional hearing was held on November 6, 2017. County counsel moved into evidence, inter alia, additional failures to test by Mother, the jurisdictional/dispositional report from the prior dependency in 2013, and an additional information report dated November 3, 2017. The additional information report stated that Mother claimed that CFS and the sheriff's department had kidnapped her children and included Mother's email entitled "Corrupt police and sheriffs."
Mother testified at the contested hearing. Regarding her substance abuse, she testified that the last time she used methamphetamines was in 2014. Mother also indicated that she did not understand that she was subject to on-demand drug testing by the social worker. Mother further testified that there was a history of domestic violence in her background, but, she was not the abuser, and she had previously completed a course in domestic violence. Mother declined to participate in any additional domestic violence classes, if ordered by the Court, because she did not believe "[she was] an abuser or a victim." Mother testified that "[she did not] see that domestic violence issue . . . ." Furthermore, Mother disagreed with Dr. Yang's diagnoses of PTSD and other unspecified personality disorder. However, she was willing to address it in counseling. With regard to the tasing threat made to J.G., Mother responded that it was a joke. She further indicated that she kept the taser gun in the bottom of her purse, and the children were forbidden from going into her purse. She also kept a firearm in a safe. Mother indicated that she resided with friends and family, specifically with her aunts in a five-bedroom home since she got out of custody on September 1, 2017. However, she planned to live with her other aunt who owned a duplex. Mother admitted that she would "hose [the children] off" in the backyard instead of allowing them to shower. She also admitted to calling the social worker a liar but denied making a scene at the visit.
Following arguments from all counsel, the juvenile court found the allegations in the petitions true as amended. Specifically, the court sustained the allegations regarding Mother's history of substance abuse, history of domestic violence, and history of neglect in a prior dependency case. The court modified Mother's mental health allegation in accordance with proof to reflect that Mother was diagnosed with PTSD and amended the reference to the exact date when J.G. was threatened with a tasing device in J.G.'s and his siblings' petitions. The court dismissed Mother's no provision for support allegations pursuant to section 300, subdivision (g). The children were declared dependents of the court and removed from parental custody. Mother and Father were provided with reunification services and ordered to participate in their case plan. Over CFS's objections, the court also ordered supervised visits for Mother in a therapeutic setting. This appeal followed.
III
DISCUSSION
A. Jurisdictional Findings
On appeal, Mother challenges the sufficiency of evidence supporting the juvenile court's jurisdictional findings under section 300, subdivision (b).
We review a juvenile court's jurisdictional findings for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) Substantial evidence is "evidence that is reasonable, credible and of solid value." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) Under this standard of review, we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the juvenile court on issues of credibility of the evidence and witnesses. (In re A.J. (2011) 197 Cal.App.4th 1095, 1103.) We determine only whether there is any substantial evidence, contradicted or uncontradicted, that supports the juvenile court's order, resolving all conflicts in support of its determination and drawing all reasonable inferences to uphold its ruling. (In re John M. (2012) 212 Cal.App.4th 1117, 1124.) If there is substantial evidence to support the juvenile court's order, we must uphold the order even if other evidence supports a contrary conclusion. (In re N.M. (2011) 197 Cal.App.4th 159, 168 (N.M.).)
Section 300, in pertinent part, provides that a child may be declared a dependent under subdivisions (b) and (j) if: (b) "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left," and (j) "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." "The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child." (§ 300, subd. (j).)
Mother argues there was insufficient evidence to support the juvenile court's true finding as to section 300, subdivision (b) allegations that she had a history of substance abuse, a history of engaging in domestic violence, a history of neglect as indicated by a previous dependency proceeding, and PTSD, which placed the children at risk of harm.
Three elements must exist for a jurisdictional finding under section 300, subdivision (b): (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The third element requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future. (In re David M. (2005) 134 Cal.App.4th 822, 829; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. (David M., at p. 829.) "Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. The court may consider past events in deciding whether a child currently needs the court's protection. [Citation.] A parent's ' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' [Citations.]" (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384.)
1. Substance Abuse History
In this case, the record demonstrates that Mother suffered from a substance abuse problem—both methamphetamines and marijuana—which impacted her parenting. Mother acknowledged that she had a history of methamphetamine and marijuana use, but denied substance abuse was ongoing after 2014. However, the totality of the record showed that Mother's substance use was ongoing. First, Mother received a clinical diagnosis of "Substance Use Disorder" (cannabis and amphetamine use) rendered by Dr. Yang. Second, on August 28, 2017, Mother was arrested for being under the influence while in the immediate possession of a loaded, operable firearm. And, third, by the time of the contested jurisdictional/dispositional hearing, Mother failed to drug test at least four times, despite being informed that failure to test or a refusal to test would result in a positive test.
In addition, the record reveals Mother's inconsistencies in reporting her history of substance abuse. When called to testify at the contested jurisdictional/dispositional hearing, Mother claimed that the last time she used amphetamines was in 2014. However, during her psychological evaluation, Mother disclosed that she last used methamphetamines in April 2015 and her last marijuana use was in January 2017. Dr. Yang also noted that Mother reported experiencing paranoia with marijuana use. The paranoid feeling included a feeling that people were against her. For example, Mother was adamant that the maternal grandmother kicked her out of her home and caused her and her six younger children to live in the garage, while the maternal grandmother, the maternal uncle and J.G. reported that no one had asked Mother to move into the garage. Mother further demonstrated her paranoia in tying a rope on the door handle of the garage so that the children could not leave. As a result, the children were forced to defecate and to urinate in the planters outside or to use a bucket.
On August 25, 2017, in her interview with the social worker, the maternal grandmother stated that she believed Mother was using methamphetamines because she observed Mother's severe weight loss along with instances when Mother would go into depressive states and sleep all day followed by days when Mother was full of energy and engaged with the children. Father recalled that when Mother used methamphetamines in the past, her conversations would not make sense. J.G. and H.G. reported to the social worker that Mother did not make sense. There were instances when Mother announced: " 'Marshall Law was invoked and nuclear winter was going to happen' " and " 'I am Lilith, reincarnated.' "
Mother argues that there was insufficient evidence to support a finding the children were at a substantial risk of future harm because there was insufficient evidence of ongoing substance abuse. She relies on In re J.N. (2010) 181 Cal.App.4th 1010 (J.N.) to support her position. But that case is readily distinguishable.
In J.N., supra, 181 Cal.App.4th 1010, the father was driving drunk with the mother and the three children in his car when he crashed into a light pole. (Id. at pp. 1015-1017.) The mother was also drunk. (Id. at pp. 1016-1018.) Two of the children were injured, and one had a cut that required nine stitches. (Id. at pp. 1016-1018.) The appellate court found sufficient evidence that one child had suffered serious physical harm as a result of the parents' failure to protect. (Id. at p. 1023.) However, it held that, by the time of the jurisdictional hearing, there was insufficient evidence of current risk. (Id. at pp. 1025-1026.) The parents were remorseful and cooperative, and there was no evidence that they had any ongoing substance abuse problem. (Id. at pp. 1019, 1022, 1026.) The court concluded: "Despite the profound seriousness of the parents' endangering conduct on the one occasion in this case, there was no evidence from which to infer there is a substantial risk such behavior will recur." (Id. at p. 1026.) In the present case, unlike in J.N., Mother had a long-standing history of substance abuse. Although she denied current drug use, the record reveals otherwise, as previously noted.
Accordingly, there was sufficient evidence to support the juvenile court's true finding that Mother had a history of substance abuse that placed the children at a substantial risk of abuse or neglect.
2. Mother's History of Domestic Violence
Mother also argues "[a] past history of being a victim of domestic violence did not create 'serious physical [harm] to the children, nor did it constitute a "failure to protect" the children.' " It is true that past incidents of domestic violence alone, while a predictor of future violence (In re R.C. (2012) 210 Cal.App.4th 930, 942; In re E.B. (2010) 184 Cal.App.4th 568, 576), are insufficient to support a jurisdiction finding based on domestic violence. In In re Daisy H. (2011) 192 Cal.App.4th 713 (Daisy H.), the court noted that "[p]hysical violence between a child's parents may support the exercise of jurisdiction under section 300, subdivision (b) but only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm. [Citations.]" (Id. at p. 717, italics added.)
In Daisy H., supra, 192 Cal.App.4th 713, the prior acts of domestic violence occurred two or seven years before the petition was filed. In addition, there was no evidence that the children were exposed to the past violence, and there was no evidence of any ongoing violence between the parents who were separated. (Id. at p. 717.) The court concluded this "evidence was insufficient to support a finding that past or present domestic violence between the parents placed the children at a current substantial risk of physical harm." (Ibid.; see In re Jesus M. (2015) 235 Cal.App.4th 104, 113 [no substantial evidence to support domestic violence jurisdiction finding where "the parents had long been separated, the two incidents [the m]other could recall had occurred more than three years earlier, and there was no evidence of current violent behavior"].)
Here, like in Daisy H., supra, 192 Cal.App.4th 713, there was no evidence that, at the time of the jurisdictional hearing, there was ongoing domestic violence between Mother and Father. Nonetheless, there was sufficient evidence of ongoing domestic violence in the home between Mother and the maternal grandmother. J.G. disclosed that Mother continuously argued with the maternal grandmother. Mother threatened to tase the maternal grandmother and the maternal uncle until they were "foaming at the mouth" and then to shoot them in the chest so that they could die "a slow death." Mother also threatened to set the maternal grandmother's home on fire. In fact, Mother's disagreements with the maternal grandmother and the maternal uncle were so frequent that they caused Mother to move out of the maternal grandmother's home and to barricade herself and her six younger children in the garage. In fact, Mother's abuse of the maternal grandmother continued when she saw the maternal grandmother at a visit. Furthermore, J.G. reported being " 'in fear for his safety and the safety of his siblings' " at the time of the initial referral due to Mother's conduct.
Moreover, while there was insufficient evidence of ongoing domestic violence in the home between Mother and Father, there were numerous, recent incidents of Mother's abusive conduct that established the children were at risk of harm. The domestic violence allegation was one aspect of a pattern of abuse in Mother's home. Accordingly, it provided factual support for the juvenile court's determination that the children were at substantial risk of serious physical harm pursuant to section 300, subdivision (b).
The evidence showed a lengthy history of domestic violence to which the children were exposed. Mother acknowledged prior domestic violence with Father. She recounted incidents during her marriage when Father hit her and even sexually assaulted her. Father admitted to constant arguing with Mother during their marriage as well, and reported that Mother would be "freaking out" and "screaming," and go "from zero to sixty in the blink of an eye." These old incidents were still fresh in the children's minds. J.G. recalled that when he lived with Mother and Father "there was a lot of yelling and screaming" and once he saw his Mother being manhandled by Father. H.G. remembered that Mother and Father would argue a lot. T.G. also recalled that Mother and Father yelled a lot. G.G. reported that she saw Mother and Father kicking and punching each other, so she ran away to hide. The children also recalled recent incidents of Mother yelling and arguing with the maternal grandmother. Indeed, Mother's pattern of violent outbursts continued during her interactions with social workers, security officers, and law enforcement. The violence to which the children were exposed was so pervasive that it was likely to continue without the juvenile court's intervention.
In other words, the children were periodically exposed to violent confrontations that were detrimental to them, even if they were not physically harmed. "[S]ection 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction." (I.J., supra, 56 Cal.4th at p. 773.) Instead, there need be only a " 'substantial risk' " of abuse or neglect. (Id. at p. 773.) Mother's failure to benefit from prior domestic violence classes and failure to recognize that domestic violence posed a substantial risk to the children also supports the court's domestic violence finding.
3. Diagnosis of PTSD
Mother also contends that "[the fact] [t]hat a parent is mentally ill is not the end of the story" and there was no causation between Mother's diagnosis of PTSD and the risk it posed to the children. Mother is mistaken. In fact, the record reveals Mother's mental health diagnosis posed a substantial risk of harm to the children.
Following a disagreement with the maternal grandmother, Mother barricaded herself and her six younger children in the garage of the maternal grandmother's home. She would not allow the six younger children to enter the maternal grandmother's home to use the bathroom or shower. Instead, she made the six younger children defecate and urinate in planters outside the garage, or she would have them wear diapers or take the children to a nearby fast-food restaurant. The social worker observed the planters, which smelled like feces. Mother acknowledged hosing off the children in the backyard instead of having them take a shower. The maternal grandmother and J.G. reported Mother's behaviors that were indicative of mental health issues.
Dr. Yang's psychological evaluation stated Mother presented paranoid personality features, grandiose ideas, and poor impulse control. Even if Mother's grandiose ideas (e.g. she developed a concoction that would cure breast cancer) presented no immediate threat, her poor impulse control was of paramount significance. Because Mother believed that others sought to harm her or her children, she acquired a gun and a tasing device. Mother previously threatened to tase the maternal grandmother and the maternal uncle until they were "foaming at the mouth" and to shoot them in the chest so they could die "a slow death." J.G. reported that Mother was verbally aggressive and threatened to tase him. He also stated that he was worried for his safety and the safety of his siblings. J.G. reported that Mother called him names and slapped his face. J.G. also disclosed a prior incident when Mother got angry with him, grabbed him by his hair, punched him in the face, and when J.G. fell, she continued to hit him while he was on the floor.
Furthermore, Mother could not control her aggression and violent outbursts even during her visits with the children. For example, when sighting the maternal grandmother at the visitation center, Mother screamed: " 'You're going to pay for this, you bitch!' " This was not an isolated incident. A few days later, at a different visit, Mother yelled at the social worker, refused to leave the premises, and was escorted off the premises by the security guards—all of which caused C.G. and Ga.G. to cry inconsolably. Ultimately, Mother's behavior and its impact on the children caused the court to suspend her visits and order them to be resumed in a therapeutic setting after Mother made progress in counseling. Mother's denial of her diagnosis rendered by a mental health professional and her failure to accept help in the form of services also indicate that, if left untreated, her mental health issues would continue to place the children at a substantial risk of abuse or neglect.
Based on the totality of the record, there was substantial evidence to support the juvenile court's finding that Mother's untreated PTSD issues reasonably posed a substantial risk of serious harm to the children.
4. History of Prior Dependency
Mother also argues that "there is nothing indicative of [her] having had a previous dependency case that places the children at current risk of neglect." She believes that her previous "[p]articipation in a child welfare court case is not like having a virus like chicken pox that increases a parent's risk of severe neglect, like the increased risk of later developing shingles." Mother's analogy is erroneous. Mother's prior dependency history, much like her untreated mental health illness, created a risk of harm to her children.
As explained above, Mother previously had a case where substance abuse and domestic violence were the reasons that led to the court ordering family maintenance services. Mother had appeared to have previously successfully reunified with her children after having completed the court-ordered case plan. However, the issues that led to the first dependency resurfaced and had not been fully resolved. First, Mother engaged in ongoing domestic violence with the maternal grandmother and the maternal uncle, exposing her children to recurring risk of suffering serious physical harm and illness. Mother, who had already received education regarding domestic violence during the prior dependency, failed to recognize the inception of her interpersonal conflicts that led to the ongoing domestic violence in the current case. Second, Mother had relapsed into drug use, as evidenced by her behavior, her statements to the social worker and Dr. Yang, her presumptively positive drug test results, and her most recent arrest for being under the influence. Third, Mother's relapse caused her to suffer from PTSD and paranoid feelings. Mother's exacerbated mental health issues caused her to remove her six younger children from a healthy and clean home, to barricade them in a garage, and force them to defecate and urinate in planters. In turn, Mother neglected her children's safety and well-being when she tied a rope to the door handle inside the garage and barricaded herself and her six children inside a filthy dwelling crowded with dirty dishes on a gnat and fly infested bed.
Mother denied her current drug use despite evidence to the contrary. She also denied continuous and ongoing domestic violence that placed her children at risk of harm. In this pending dependency case, she failed to drug test on demand, failed to maintain a suitable home for her children, and refused to engage in predisposition services, despite the social worker requesting her to do so on separate occasions, because, in Mother's opinion, she had previously completed her services. It is evident, however, that the same issues that led to the first dependency proceeding persisted. Furthermore, Mother's subsequent conduct after the children were taken into protective custody, and her violent and aggressive outbursts at visitations, indicated Mother was likely to engage in similar behaviors in the future. (J.N., supra, 181 Cal. App.4th at pp. 1025-1026 [in evaluating the current risk, court should consider evidence of parent's current understanding of and attitude toward the past conduct that endangered a child].)
Accordingly, substantial evidence supports the juvenile court's finding that Mother had a history of a dependency proceeding which placed the children at risk of harm or neglect.
We reject Mother's claims to the contrary. We also reject Mother's claim that the underlying context for this case was Mother's poverty. There is no indication in the record to support Mother's claim, that although CFS did not allege poverty and homelessness as basis of jurisdiction, the petition did not "guard against the influence of class and life style biases." Mother never raised poverty and homelessness as impediments to her ability to care and parent her seven children during the inception of the case. To the contrary, she claimed she was self-sufficient. She reported that she was a licensed nurse—psychiatric nurse in Nevada and a vocational nurse in California—who worked as a holistic nurse because she no longer believed in conventional medicine. Mother also claimed that she had clients who bartered with her for food and furniture for her services. In addition, Mother received monthly social security payments as survivor's benefits after J.G.'s father passed away. She also asserted that she resided with her "aunts" in a five-bedroom home, and that she was planning to move in with another aunt who owned a duplex.
Accordingly, we reject Mother's claim that the underlying context for jurisdiction in this case was poverty. Rather, as explained above, there was substantial evidence to support the juvenile court's jurisdictional findings based on numerous grounds.
B. Dispositional Findings
Mother also challenges the juvenile court's dispositional order removing the children from her custody. Mother claims that the evidence was insufficient to support a finding that the children would be in substantial danger without removal from Mother's care and that there were reasonable means to safely maintain the children with Mother. CFS responds there was sufficient evidence to support the court's dispositional order removing the children from Mother's care.
Section 361, subdivision (c), permits the removal of a child from the physical custody of a parent with whom the child was residing when the dependency petition was filed 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 child if he or she were returned home, and "there are no reasonable means by which the [child]'s physical health can be protected without removing" the child from the parent's custody. (§ 361, subd. (c)(1).) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The [juvenile] court may consider a parent's past conduct as well as present circumstances. [Citation.]" (N.M., supra, 197 Cal.App.4th at pp. 169-170.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) An appellate court reviews a dispositional order removing a child from parental custody for substantial evidence bearing in mind the heightened clear and convincing burden of proof that is required to remove a child from a parent's care. (In re D.G. (2012) 208 Cal.App.4th 1562, 1574; In re J.K. (2009) 174 Cal.App.4th 1426, 1433; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
The evidence in this case was sufficient to support a finding that Mother's conduct posed a substantial risk of harm to the children and that removal of the children from Mother's custody was the only reasonable means to protect them from that harm. The record reflects that Mother had unresolved substance abuse, domestic violence, and mental health issues that posed a substantial risk of harm to the children. The same evidence that supported jurisdiction also supported removing the children from Mother's custody. The record demonstrates that Mother relapsed and began using drugs. In addition, Mother continued to engage in ongoing domestic violence with the maternal grandmother and the maternal uncle, and failed to demonstrate awareness or acknowledge that her behavior posed a risk of harm to her children, despite having received services in the past. Furthermore, Mother was diagnosed with PTSD and exhibited a general sense of paranoia that other people were after her. Dr. Yang noted Mother's feelings of paranoia were brought on by her marijuana use, and recommended Mother participate in substance abuse treatment, domestic violence treatment, individual counseling, parenting classes, and education regarding her mental health issues. However, Mother adamantly refused to sign any paperwork to be referred to pre-dispositional services. She also declined to participate in services because she stated that she had previously complied with the court-ordered case plan and she had already completed her services. Moreover, Mother continued to engage in violent outbursts at visitations, causing C.G. and Ga.G. to cry uncontrollably. Given Mother's unwillingness to acknowledge her conduct and her refusal to cooperate with CFS, we conclude that there is substantial evidence to support a reasonable finding that removing the children from her care was the only means of protecting them from the serious risk of physical harm that Mother posed.
Mother claims that CFS should have provided her with housing. However, housing and poverty did not play a role in CFS's necessity to intervene in the family and to remove the children. Mother never stated to CFS that she was homeless. Mother claimed that she resided with the maternal grandmother after moving to California from Nevada around Christmas 2016 until August 2017. Later she voluntarily decided to move into the garage in the back of the maternal grandmother's house, and, finally, postincarceration, Mother resided with her aunts. Mother also claimed that she was seeking a larger home, and to that end, she planned to move in with her other aunt who owned a duplex.
Even if Mother did have a home that was sanitary and fit for the children, it was detrimental to leave the seven children in her custody because Mother refused to acknowledge the reasons for CFS intervention, and she refused to participate in her pre-dispositional services, which made it impossible for CFS to develop a safety plan. (In re Maria R. (2010) 185 Cal.App.4th 48, 71 [Mother's refusal to cooperate with agency was evidence that removal was necessary], disapproved in part on another ground in I.J., supra, 56 Cal.4th 766.) The alternative of leaving the children in Mother's custody was not appropriate to protect the children, especially since Mother had been offered services in the past and had failed to benefit from those services. Mother's argument ignores the purpose of disposition proceedings, which is to avoid harm to the child. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) Under the circumstances of this case, the record does not support Mother's assertion that there were alternatives available short of removal from her care.
Mother's reliance on In re Basilio T. (1992) 4 Cal.App.4th 155 (Basilio T.), superseded by statute on another point as noted in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1242, is misplaced. In Basilio, the appellate court found evidence regarding two domestic violence incidents between the parents of four- and six-year-old children was sufficient to support jurisdiction but not removal from the parents' custody because there was no evidence the children had suffered or were at substantial risk of suffering physical harm due to the violence. (Id. at pp. 160, 170-171.) However, the Legislature amended section 361 after the decision in Basilio—then, the statute required removal only when there was a substantial danger to the physical health of the child; now, the statute also mandates removal when there is a substantial danger to the safety, protection or emotional well-being of the child. (§ 361, subd. (c)(1), as amended by Stats. 1996, ch. 1084, § 4, p. 7606; Stats. 1996, ch. 1139, § 8.5, p. 8145; see In re J.S. (2014) 228 Cal.App.4th 1483, 1493-1494 [discussing the amendment].)
Here, Mother's ongoing domestic violence issues with the maternal relatives were compounded by her ongoing issues of substance abuse and mental health, which caused J.G. in fear for his safety and the safety of his siblings. In addition, the juvenile court could reasonably conclude based on the totality of the evidence that Mother's conduct toward J.G. caused him to suffer emotional harm, and his siblings were at risk of similar harm. " 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.]" (N.M., supra, 197 Cal.App.4th at pp. 169-170.)
Based on the foregoing, we conclude substantial evidence supports the juvenile court's finding the children would be in substantial danger without removal from Mother's care, and no reasonable means existed to protect them without removal. (§ 361, subd. (c)(1).) The juvenile court's dispositional order was therefore supported by substantial evidence.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. MILLER
J.