Opinion
D073789
08-27-2018
In re N.R. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.R., Defendant and Appellant.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. EJ4233AB) APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
A.R. (Mother) appeals the juvenile court's March 19, 2018 jurisdiction and disposition findings and orders placing minors N.R. and L.W. in foster care. She contends there was a lack of clear and convincing evidence to justify the out-of-home placement. We disagree and affirm.
BACKGROUND
On January 4, 2018, San Diego Health and Human Services Agency (Agency) received a referral for 12-year-old N.R., who had been having suicidal ideations and cutting herself. N.R. told her school counselor and deputies from the San Diego County Sherriff's Department her mother told her to kill herself, said she would throw N.R. off a cliff, and said she could not wait until N.R. got pregnant so she would no longer be Mother's responsibility. Mother admitted making the statements but said she did not mean them. N.R. told the social worker her mother hits her, pulls her hair, punches her, and slaps her. N.R. had been using a razor blade to cut herself, and the social worker observed scars, marks, and cuts on both of N.R.'s inner forearms. When the school told Mother about N.R.'s cutting, Mother asked the school to call the sheriff to transport N.R. for the 72-hour hold so N.R. would be "scared straight."
School employees were concerned about Mother's coping skills because Mother planned to ground N.R. for her behavior and refused to seek mental health treatment for N.R. The school psychologist stated N.R. told her she cuts because of stressors from moving, fitting in at school, taking care of her one-year-old sister, Y.S., and pressures at home.
Mother blamed N.R. for being dramatic and selfish and for exaggerating, and Mother did not take responsibility for inappropriate statements she made to N.R. Mother admitted to deputies she had called her daughter a "bitch," told her to "go fuck herself," cussed, and had a "really bad mouth." Mother told the social worker N.R.'s issues do not compare to her own, and she does not have the patience to deal with N.R. She stated she was overwhelmed when her children nagged her, and sometimes after work she did not even want to see them. Mother admitted she physically disciplined her children, but commented she often hits them in places she does not intend because they move; she said, "they need to stand there and just take it." The social worker discussed the law regarding physical discipline and told Mother not to use objects to hit her children.
N.R. was taken to Aurora Behavioral Health Care (Aurora) for a 72-hour psychiatric hold. Mother believed N.R. should be punished for her behavior and thought N.R. was cutting for attention and did not intend to hurt herself. Mother said if N.R. did not change her attitude, Mother would beat her and "go old school on her."
On January 18, 2018, after N.R.'s return from Aurora, the Agency received another referral. N.R. reported her mother slapped Y.S., spanked her over her diaper, threw Y.S. onto the mattress, and threatened to suffocate Y.S. with a pillow. N.R. also said it sounded like Mother was shaking the baby in the crib because she could hear the sides of the crib hitting the wall, but she did not observe it. Mother denied throwing Y.S. on the bed, but acknowledged spanking her on the bottom.
N.R. also explained that her aunt told her to call the police if her mother hit her. After N.R. shared this with her mother, Mother took away her phone and hit her multiple times with a belt on her body, over her clothes, which caused bruises. N.R.'s nine-year-old brother, L.W., also said Mother hit him with a belt and had bruising. L.W. reported when Mother got frustrated with Y.S., Mother would scream at Y.S. Mother acknowledged hitting N.R. with a belt, but could not remember the last time she spanked L.W. with a belt. N.R.'s aunt reported there had been times when the children were visiting her and they did not want to go home because they did not feel safe.
The Agency expressed concern Mother would continue to physically discipline the children with an object, and Mother lacked empathy and understanding of N.R.'s mental health needs, taunting her, and encouraging her to commit suicide. Mother followed up with hospital recommendations to enroll N.R. in counseling, but continued to taunt N.R. about her life being too stressful, and said, in reference to N.R. going to Aurora, that if N.R. did something like that again, she would send N.R. to foster care or put her up for adoption.
The Agency filed a Welfare and Institutions Code section 300 petition regarding N.R. pursuant to section 300, subdivisions (a) and (c), alleging that Mother subjected N.R. to serious physical harm and that N.R. was suffering or at substantial risk of suffering emotional damage. The petition regarding L.W. was filed pursuant to section 300, subdivision (a), alleging physical injury or substantial risk of physical injury. At the detention hearing on January 23, 2018, the court detained N.R. and L.W. Mother explained she spanks them "as needed," and she uses a belt so she does not break her nails. She also explained she was overwhelmed as a single parent after leaving an abusive relationship, but she provided for her children, and she only used physical discipline after telling them three or four times to do something. Mother did not think she did anything wrong; she intended to spank N.R. on the bottom with the belt, but N.R. moved. Mother said she herself had a history of cutting to get attention from her parents, and she saw N.R.'s cuts, which she believed were superficial, so N.R. was not trying to kill herself.
All future section references are to the Welfare and Institutions Code.
Y.S., who is not the subject of this appeal, was placed with her father.
Aurora identified N.R. as suffering major depression and noted stressors included having to take care of her younger siblings. Mother did not want N.R. to participate in counseling services through Vista Hill Learning Assistance Center (Vista Hill), as recommended by Aurora, because N.R. had been removed from her home.
Mother's visits with the children generally had been appropriate. However, during a doctor's appointment, Mother told the nurse N.R. was a liar. Then, after N.R. whispered something in her mother's ear, Mother yelled, "Why does it have to be a competition between me and you[?]" Mother also commented in front of N.R. that it was N.R.'s fault Mother could not work as a medical assistant. Mother called N.R. that night, but did not call the next two days.
In its March 8 addendum report, the Agency identified an incident at a supervised visit which Y.S.'s father attempted to attend. After the foster parent asked Y.S.'s father to leave, he said he would not bring Y.S. to visit with her siblings again. Both N.R. and L.W. initially cried, but the visit went well after Y.S.'s father left. Mother later commented she did not understand why N.R. panicked.
The report also noted Mother had made an intake appointment for therapy at Vista Hill, had completed an appointment for the Incredible Families program, had been meeting with a Parent Partner through Community Services for Families, and was participating in the Child Abuse Group, all services recommended by the Agency. Mother seemed receptive to the services she received. She commented she had learned she should try to use positive reinforcement, but she could not give an example of what that would look like.
Mother voluntarily submitted to a drug test, acknowledging it would test positive for marijuana and prescription medication because she had a medical marijuana card and had been prescribed the medication. The test was positive for marijuana, hydrocodone, and butalbital (barbiturates).
In its March 19 addendum report, the Agency updated visitation information. During one supervised visit, things went well. At another visit, Mother was frustrated and negative with the children when the children bickered, were not interested in drafting a family plan together, or did not do their homework the way Mother wanted them to do it. Mother left the visit early. Later Mother said she had needed to get back to Y.S., who was with her father, and she was upset L.W. had not volunteered a hug by walking over to her. At a subsequent visit, Mother talked to the children about doing chores so their transition back home could be smooth. N.R. told the social worker she wanted to return home. N.R. said Mother's language was better, and Mother told N.R. she would not hit them anymore.
At the contested jurisdictional and disposition hearing held March 19, the Agency recommended the petition be sustained, with monitored visits and reunification services for Mother, and the children's attorney joined the recommendation. The children's attorney also informed the court the children wanted to return home with their mother. The court found by clear and convincing evidence the allegations in the petition were true as to both children under section 300, subdivision (a), and also under subdivision (c) as to N.R. The court also found by clear and convincing evidence the children should be removed under section 361, subdivision (c)(1) as to both children and also subdivision (c)(3) as to N.R. The court noted N.R. was suffering severe emotional damage, and there was no way to protect her without removing her from Mother's physical custody. In reaching its decision, the court reviewed the detention report, the jurisdiction and disposition report and two addendum reports, and the attorneys' arguments. The court ordered the children placed in a foster home and gave the social worker discretion for lifting supervision of visits and allowing overnight visits between the children and Mother. Mother timely appealed the order and findings.
DISCUSSION
On appeal, we review jurisdictional and dispositional findings and orders under the substantial evidence standard of review. (In re A.S. (2011) 202 Cal.App.4th 237, 244.) Substantial evidence exists when the evidence is "reasonable in nature, credible, and of solid value," so that "a reasonable mind would accept [it] as adequate to support [the] conclusion." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under this standard of review, we consider the record as a whole, in a light most favorable to the juvenile court's findings and conclusions, and we defer to the juvenile court on any issues of credibility of the evidence. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) The existence of evidence of some support for a contrary finding will not defeat the finding. (In re Manuel G. (1997) 16 Cal.4th 805, 823.) Moreover, "[w]hen the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact." (In re Jasmine C. (1999) 70 Cal.App.4th 71,75.) However, "[w]e bear in mind the heightened burden of proof." (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.)
Section 361, subdivision (c)(1) prohibits removal of a dependent child from the custody of his or her parents with whom the child resides absent evidence "there 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 the minor's health cannot be protected without removing the minor from the parent's physical custody. Section 361, subdivision (c)(3) authorizes removal when a minor demonstrates severe emotional damage, which can be indicated by severe depression and anxiety. (See In re H.E. (2008) 169 Cal.App.4th 710, 719-720.) Removal also is permissible when there is a risk of emotional or physical harm. (Ibid.)
Mother contends there was insufficient evidence to support the court's removal of N.R. and L.W. from her care because she could have provided a safe home for them with the provision of family services. However, there is substantial evidence on the record to contradict her contention.
There is some evidence reflecting Mother's progress. Mother was participating in programs and visiting with the children. N.R. reported the classes were helping, Mother's language was better, and Mother told her she would not hit them anymore. However, Mother's self-serving statement to N.R. was controverted by other evidence.
Mother's past conduct provided evidence of a substantial risk to the children's physical well-being. (In re T.V. (2013) 217 Cal.App.4th 126, 133 ["A parent's past conduct is a good predictor of future behavior."].) Even after Mother was informed of the law regarding physical discipline, she used a belt to spank N.R. so she would not break her nails. Mother did not think she had done anything wrong, and she blamed the children for their bruises, commenting they should stand still and take the beating rather than move while being hit by the belt. Similarly, though Mother acknowledged the importance of using positive reinforcement with her children, she subsequently was negative during visitation and grew frustrated when the children did not immediately follow directions.
Moreover, Mother provides no specific evidence or support for her contention there were reasonable means by which N.R. and L.W. could be protected without removal from her custody. Her reliance on In re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.) is unavailing. In that case, the child was removed from his mother's custody after an unexplained burn was discovered and the child displayed a significant speech delay. (Id. at pp. 526-527.) At the time of disposition, the mother had completed the parenting classes, and the social worker testified the mother would do whatever the court told her to if the child were kept in an out-of-home placement. (Id. at p. 527.) The Court of Appeal concluded the findings were not sufficient to support the court's decision under the clear and convincing standard because the mother could continue with in-home services and receive unannounced visits. (Id. at pp. 527, 530.) The court also noted there was no mention of the clear and convincing standard on the record. (Id. at p. 530.)
In contrast here, the court directly applied the appropriate evidentiary standard, and the court did not use the out-of-home placement as an incentive for participation in the services being offered. Moreover, the quality and volume of evidence is different here. In Henry V., the cause of the child's burn was not clear. (Henry V., supra, 119 Cal.App.4th at p. 527.) Here, Mother has not only acknowledged hitting the children with a belt, but she has also said she has done nothing wrong, and the children should "stand there and just take it." Moreover, though N.R. is old enough to call for help, when N.R. told her mother she could do so, her mother responded by taking away the phone and hitting her with a belt.
Finally, in her appeal, Mother does not address the need to protect N.R.'s mental health and the substantial risk to returning N.R. to Mother's custody in light of evidence of N.R.'s depression, previous suicidal ideations, and cutting. Returning home would not eliminate N.R.'s stressors. Though Y.S. was not living with Mother, removing the expectation N.R. would care for Y.S., other stressors for N.R. would continue because L.W. would be living there, there would be pressures at home, and Mother would expect N.R. to complete chores. Even when Y.S. was not involved in visits, Mother still easily became frustrated during visitations when N.R. and L.W. bickered or did not follow her instructions for how to approach their schoolwork. Though N.R. was receiving counseling, Mother had minimized N.R.'s mental health concerns, treating N.R.'s cutting and earlier suicidal ideations as attention-seeking drama, even after N.R. returned from Aurora. Mother's lack of empathy raised concerns.
Looking at the record as a whole, there is substantial evidence to support the juvenile court's conclusion that N.R. and L.W. were at risk of harm to their physical and emotional well-being if returned to Mother's care.
DISPOSITION
We affirm the findings and orders.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.