Opinion
E072854
03-03-2020
In re A.S., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.R., Defendant and Appellant.
Alessandro L. Casati for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath Shettigar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1800788) OPINION APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge. Affirmed. Alessandro L. Casati for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant M.R. (mother) appeals a dispositional order of the juvenile court removing one of her children (the child) from her home and placing him with his presumed father (father), with family reunification services ordered for her and family maintenance services ordered for father. We find substantial evidence supports the order and reject mother's argument that the court violated her right to due process.
BACKGROUND
Shortly after midnight on a weekday in December 2018, Corona police officers were called to mother's home where she lived with the child (then 14 years of age) and his 16-year-old brother (the brother), her husband, whom she had recently married, and his eight-year-old son from a prior marriage. When the officers arrived, they found mother and her husband in an extremely intoxicated state. Mother had a split lip, a ripped ear, and marks on both sides of her face. She also had older significant bruising on her back and one of her legs. Her husband had several scratches on his arms. The brother had an injury above his eye. There was an extremely strong odor of marijuana in the house, blood on the walls, and a broken television on the floor. Empty alcohol bottles and marijuana paraphernalia were found in mother's bedroom.
The brother told the police that mother and her husband do well together until they begin drinking, which they do at night after the children are in bed. They also go to a bar two to four times every week and come home intoxicated. Frequent verbal fights had escalated into more physical ones, with the couple throwing objects. That evening, they had been drinking and started fighting in their bedroom. At some point, mother came out of the bedroom ranting and, when the brother told her to shut up, the child attacked him for being disrespectful to mother. The husband then came out, threw the child against the wall, and jumped on the brother. Mother threw a deodorant stick at her husband, but it hit the brother in his eye, causing a small laceration. The two boys managed to get out of the house and ran across the street, where the brother called the police. Their eight-year-old stepbrother remained inside while the commotion continued.
The responding police officers made arrangements for the children's care that night and reported the matter to respondent, Riverside County Department of Public Social Services (DPSS).
When DPSS investigated several days later, mother insisted there were no issues in the family that warranted provision of services and was adamant that accounts of altercations in the home were ridiculous. By then, the brother was staying with father, and mother had no objection to that arrangement. The child, who was very connected with, loyal to, and protective of mother refused to leave her home. DPSS took the child into custody, placed him with father, and filed a juvenile dependency petition pursuant to section 300 of the Welfare and Institutions Code.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. --------
The juvenile court sustained an amended version of the petition agreed upon by the parties, finding the child came within subdivision (b)(1) of section 300 due to mother's excessive use of alcohol, her engaging in altercations within the child's hearing, and past domestic violence with father, which had resulted in a restraining order that expired in 2009.
After the contested hearing on disposition, the court adjudged the child a dependent of the court, removed him from mother, and ordered continued placement with father with provision of services. Family reunification services were ordered for mother. Mother appealed.
DISCUSSION
Mother makes two claims. The first is that the juvenile court "misapplied an[d] misinterpreted the legal requirements necessary for removal." In support of that argument, she raises several issues, which are essentially efforts to establish that the removal order is not supported by sufficient evidence. Her second claim is that the juvenile court violated her right to due process by its mishandling of evidentiary issues. We will affirm.
1. The Evidence Supports the Removal Order
Mother argues that reversal of the order removing the child from her home is called for because the evidence does not support the findings required to be made prior to removal. We address this issue even though mother forfeited it by disregarding the facts as found by the juvenile court and instead reciting, often without citation to the record, only those supporting her argument, including a version of the December events the juvenile court found not credible. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [Appellants forfeit an insufficiency of the evidence argument if they include in their brief merely the evidence in their own favor rather than all material evidence on the point.]; Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 183 [Appellant's disregard for the facts as found by the trial court results in a forfeiture of arguments on appeal.].)
If a minor child is adjudged a dependent of the court on the grounds that he comes within section 300, the juvenile court may limit his parent's control over him. (§ 361, subd. (a).) The limit on control may include removal of the minor from the physical custody of the parent with whom he was residing at the time the section 300 petition was initiated if the court finds by clear and convincing evidence that (i) there is, or would be, a substantial danger to the minor's physical health, safety, protection, or physical or emotional well-being if he was returned home, and (ii) there are no reasonable means to protect the minor's physical health without removing him from the parent's physical custody. (§ 361, subd. (c)(1).) The court is also required to determine whether reasonable efforts were made to prevent or eliminate the need for removal. (§ 361, subd. (e); Cal. Rules of Court, rule 5.695(e).)
We review a removal order for substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633 (R.T.).) That is, we examine the record in a light most favorable to the findings and conclusions of the juvenile court and defer to that court on issues of fact and credibility. (Ibid.) We determine only whether there is any substantial evidence, contradicted or not, that supports the juvenile court's order, resolving all conflicts in support of its determination and drawing all reasonable inferences to uphold its ruling. (Ibid.)
Here, the decision to remove the child from mother's home is amply supported by the evidence.
(a) The danger in the home and the lack of reasonable means to protect without removal
The evidence established the level of violence in the home was escalating. Mother and her husband regularly drank alcohol in the house during the week and on weekends. They frequented bars several times a week and would come home intoxicated. Mother was often so drunk that she would slur her words, be unintelligible and emotional, and would scream and cry. Verbal altercations were becoming more frequent and the parents engaged in weekly bouts of throwing things. Police had been called to the home many times.
Not only was the frequency and level of in-home violence between mother and the husband escalating, the children's exposure to and involvement in the disputes were increasing. Prior to the incident in December 2018, the children normally stayed in their rooms playing video games when mother and her husband were fighting but would yell at them to "stop it." In December, however, the child and the brother were drawn into a physical altercation after the child tried to protect his highly intoxicated mother. In the course of the melee, the husband threw the child against a wall and mother threw an object that hit the brother in the eye, causing a small laceration.
The court properly found that mother's denial that there were any problems in the home and the unaddressed domestic violence issues that had been increasing in frequency and intensity, combined with the child's strong loyalty, commitment, and desire to protect her, placed the child's physical and emotional health in substantial danger.
Mother appears to argue that the evidence is insufficient to support the removal order because no violence took place in the home. She claims the description of the December fracas provided by the brother is not worthy of belief because the child and the young stepbrother did not corroborate the brother's statements and because, according to mother, the brother is developmentally delayed and his perception has been known to be different from reality. She states without citation to the record that she and her husband had a "loud conversation" and she "fell on her own." When an appellant's brief does not refer to the pages in the record where a point can be found, we are not required to search the transcripts to find it but may simply deem the contention forfeited for lack of foundation. (In re S.C. (2006) 138 Cal.App.4th 396, 406-407 (S.C.).) We note that mother's version of events is in keeping with her testimony, which the juvenile court found lacked credibility. Issues of fact and credibility are the province of the trial court; we do not reweigh the evidence or substitute its judgment with our own. (R.T., supra, 3 Cal.5th at p. 633.)
Mother also appears to argue that the removal order was in error because the child consistently requested to be returned to her and her husband. We are not required to address that claim because it lacks foundation. She does not cite the portion of the record that supports it, nor does she provide meaningful legal analysis supported by citations to legal authority. (S.C., supra,138 Cal.App.4th at p. 408 [A point unaccompanied by citations to the record and unsupported by authority and analysis requires no discussion by the reviewing court because the argument is without foundation.].) Even so, we note it is the child's best interest, not his wishes, that determine the outcome of a case. (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1541.) Here, the court found there were no reasonable means to protect the child from substantial danger if left in mother's care, so it was certainly in his best interest to be removed from her home.
Relying on In re Basilio T. (1992) 4 Cal.App.4th 155 (Basilio T.), mother also claims the order for removal was in error because the December incident was an isolated occurrence between the parents that was not directed at the child. Mother is correct that Basilio T. held that a showing of violence between the parents and not directed toward their children is, standing alone, insufficient to support an order of removal. (Basilio T., at p. 171.) It did so, however, in circumstances readily distinguishable from those presented in this case. In Basilio T., the court described the evidence of violence as "skimpy." (Id. at p. 171.) No abuse had been directed at the minors and none of them had been harmed. (Ibid.) The parents did not deny there were issues in the home and there was evidence they were active in seeking in-home supportive services and couples' counseling and had been assigned a counselor. (Id. at p. 172.)
Here, unlike in Basilio T., the evidence established escalating domestic violence in the home, involvement of the children in the parents' altercations, and an injury to the brother. Moreover, the court in this case was very concerned about mother's denial of issues in the home. Her failure to recognize those problems and the risks they posed to the child provided sufficient reason to conclude that the domestic violence would continue if he was left in her care. (In re A.F. (2016) 3 Cal.App.5th 283, 293 (A.F.) [Because mother failed to recognize risks to the minor, there was no reason to believe the conditions would not persist if the minor remained in her home.].) Contrary to mother's suggestion, the court was not required to wait until the child suffered physical injury before ordering his removal. (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.)
(b) DPSS made reasonable efforts
Mother also argues that reversal of the removal order is called for because the evidence is not sufficient to support the juvenile court's finding that reasonable efforts were made to prevent removal of the child. We are not persuaded.
When the child was detained, the court ordered the agency to provide services to mother, including treatment for domestic violence and alcohol abuse, drug testing, parenting classes, and ordered mother to participate in those services. The social worker provided referrals to service providers approved by DPSS. By the time of the disposition hearing held three months later, mother had completed a parenting class but had attended only two sessions of DPSS-approved counseling and domestic violence classes. She evaded direct contact with the social worker, communicating in the main by email or text, and letting telephone calls go to voice mail. She continued to minimize the issues in the home, denying that she and the husband engage in domestic violence or drink in excess. Mother's denials combined with her lack of participation in DPSS-approved services provide ample support for the court's conclusion that the child could not safely be maintained in her care.
In claims that appear to be related to her no-reasonable-efforts argument, mother asserts that DPSS acted in bad faith and without regard for her rights and those of the child when it (i) did not inform her right away that she had enrolled in two programs not approved by DPSS, and (ii) did not give her credit for participating in them. Mother forfeited those arguments by not first bringing them to the juvenile court's attention. (In re S.B. (2004) 32 Cal.4th 1287, 1293 (S.B.).) In all events, we discern no evidence that DPSS acted in bad faith or disregarded the rights of either mother or the child.
At the December 2018 detention hearing, mother's counsel acknowledged in mother's presence that she had been given a full list of referrals recommended by DPSS and was willing to participate in them voluntarily but only on condition the child remained with her. On January 16, 2019, DPSS provided mother with "resources" to a particular clinic for substance abuse services and to another specific provider for domestic violence classes. That same day, mother instead enrolled in programs offered by another provider. She sent confirmation to the social worker, who did not notice at that time that the provider was not approved by DPSS.
A week before the February 27 hearing on jurisdiction, the worker made the effort to investigate that mother was taking programs and made a reasoned determination that they were inadequate. Unlike DPSS-approved services, the programs mother chose did not perform in-person assessments, the intake was simply a collection of demographic information, groups met by web cam, issues were self-reported, and progress was self-assessed.
(c) Issues concerning discovery and evidence
Mother's claims the evidence is insufficient to support the removal order because the DPSS reports did not comply with the applicable rules and statutes, resulting in social worker reports that contained superficial, inaccurate, and stale information not sufficient to support the order, fails for lack of objection during the hearing. (S.B., supra, 32 Cal.4th at p. 1293.)
Moreover, to the extent any of the reports were deficient, mother had the opportunity during the disposition hearing to explore and expose matters relevant to removal issues in the course of her testimony and during her examination of the two DPSS social workers.
Mother complains without citation to the record that the court erred when it prohibited her from soliciting testimony concerning father's legal and social history, her concerns regarding the child's placement with him, and false statements she believes father made to DPSS. We deem the contention forfeited due to a lack of foundation. (S.C., supra, 138 Cal.App.4th at pp. 406-407.) We do note, however, that the juvenile court sustained several objections when mother's counsel was questioning father. Our review of those rulings does not reveal any abuse of the court's discretion. (In re Roberto C. (2012) 209 Cal.App.4th 1241, 1249 [The juvenile court's evidentiary rulings will not be disturbed by the reviewing court absent a showing of a manifest abuse of discretion.].)
Mother also contends the removal order should be reversed because the juvenile court deprived her of the ability to prepare her case by failing to hold DPSS accountable for what she describes as its refusal to disclose mandatory items as well as its obfuscation and destruction of evidence. We disagree.
A parent's prehearing discovery request is governed by California Rules of Court, rule 5.546 (rule 5.546). That provision requires child welfare agencies to disclose any evidence favorable to the child, parent, or guardian and police reports relating to the case. (Rule 5.546(b), (c).) Rule 5.546(d) requires agencies to disclose upon request by a parent, guardian, or child any material or information if it falls within any of the eight categories specified in the subdivision. Rule 5.546(f) authorizes the requesting party or counsel to move the court for an order requiring timely disclosure of the information or materials if a party refuses to disclose them. The motion must specifically and clearly designate the items sought, set forth the relevancy of the items, and state that a timely request has been made for the items and that the other party has refused to provide them.
If the court learns that a person has failed to comply with the rule or an order issued pursuant to the rule, it is authorized—but not required—to fashion an order for discovery or inspection of materials not disclosed, grant a continuance, prohibit a party from introducing material not disclosed, dismiss the proceedings, or enter any other order it deems just in the circumstances. (Rule 5.546(j).) The court's exercise of its discretion in the discovery context will be reversed only on a showing of clear abuse. (In re William M.W. (2019) 43 Cal.App.5th 573, 592; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1166.) We find no abuse of discretion in this case.
Here, on February 14, 2019, mother's counsel sent to counsel for DPSS a demand for disclosure of all records coming within the eight categories listed in rule 5.546(d). Her counsel did not complain of DPSS's failure to disclose in the course of the February 27, 2019 jurisdiction hearing. He did not file a motion pursuant to rule 5.546(f) seeking an order compelling DPSS to respond. Nor did he raise the issue of noncompliance when the disposition hearing began on March 25. Instead, in the course of his direct examination of the social worker, he asked several questions relating to his request.
When the juvenile court sustained DPSS's objections to those queries, counsel made an oral motion for unspecified sanctions on the grounds that DPSS failed to comply with the discovery and disclosure requirements. The court responded that it would not rule on the motion "today at the time of trial," and informed counsel that any request would need to be accompanied by identification of the authority upon which he was relying. Counsel responded, "Okay. I will file a motion."
The court's refusal to consider the oral sanctions motion was a proper exercise of its discretion. Counsel had ample time to pursue compliance with his discovery request in the five or so weeks elapsing between the day of his e-mail and the day of the hearing. If counsel had been diligent in pursuing the matter by presenting a rule 5.546(f) motion before the hearing, the court would have been apprised of which specific items counsel was seeking, their relevance to the proceedings, DPSS's position concerning production, and it would have had an opportunity to consider and make whatever orders it deemed appropriate. Instead, counsel did not take any action to compel production of the items he requested and then, like a bolt out of the blue, asked the court to order sanctions with respect to an issue about which it had no information. We note that counsel indicated his intention to file a formal motion but did not do so during the three-day hiatus in the proceedings between the day of the denial (March 25) and the next hearing date (March 29) during which the court heard argument and made its order on disposition.
2. Mother Was Afforded Due Process
Mother contends reversal of the removal order is required because she was deprived of her right to due process in each of three ways: she was denied the right to cross-examine witnesses; the court did not make specific rulings on the evidentiary objections she filed prior to the hearing on disposition; and the court failed to hold DPSS accountable by issuing sanctions for its "outright and arguably malicious refusal to disclose mandatory items, and its obfuscation and destruction of evidence." We are not persuaded.
Mother's claim that she was deprived of her right to cross-examine in a "meaningful" manner persons whose statements were relied upon by DPSS is not supported by any citation to the record, so we deem it forfeited. (S.C., supra, 138 Cal.App.4th at pp. 406-407.)
Mother argues the juvenile court violated her right to due process by failing to rule on the objections to certain of the statements made in the DPSS addendum report filed shortly before the hearing on disposition, which were read and considered by the court. We deem the argument to be without foundation because, other than reciting the general rule stating that admission and exclusion of evidence in a contested hearing on jurisdiction must be in accordance with governing admissibility of evidence in civil proceedings, mother does not cite any authority, or provide a legal analysis of, her claim that the court's failure to rule violated her due process rights. (S.C., supra, 138 Cal.App.4th at p. 408.) Moreover, even if mother's claim was properly presented on appeal, it would be deemed forfeited because mother never requested a ruling on her objections. Parties cannot assert an error on appeal when they failed to raise the issue with the juvenile court. (In re Jose C. (2010) 188 Cal.App.4th 147, 161.)
Also forfeited due to the lack of authority and legal analysis is mother's contention that her due process rights were violated because the juvenile court failed to impose discovery sanctions against DPSS. (S.C., supra, 138 Cal.App.4th at p. 408.) We fail to see, and mother does not explain, how awarding sanctions in the middle of the hearing on disposition would have furthered her ability to address the dispositional issues before the court.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. RAPHAEL
J.