Opinion
E074571
12-11-2020
In re C.N. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.S., Defendant and Appellant.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Julie Koons Jarvi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1900132) OPINION APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge. Affirmed. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, M.S. (Mother ) appeals an order under Welfare and Institutions Code section 387, removing her three children, C.N. (born in 2014), L.R. (born in 2016), and S.R. (born in 2017) from Mother's care. C.N.'s father (Father N.) and L.R. and S.R.'s father (Father R.) are not parties to this appeal. Mother contends the order removing the children from her custody was not supported by clear and convincing evidence. We conclude there was substantial evidence supporting the removal order, and affirm the judgment.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
This juvenile dependency matter began in Los Angeles County. On January 16, 2018, the Los Angeles County Department of Children and Family Services (LACFS) received a referral alleging C.N., L.R., and S.R. (Children) were victims of emotional abuse and general neglect committed by Father R. The referral was made after an officer reported a domestic violence incident on December 27, 2017, involving Mother and Father R. According to Mother, during an argument with Father R., Father R. choked her until she could not breathe. He then slapped her on the cheek and punched her in the eye. The Children were present during the incident. Mother went with Father R. to urgent care for treatment the next day.
A couple of days later, when Father R. was not home, Mother called the police and reported the incident. The police escorted Mother and the Children out of their apartment. Mother and Father R. reported that the incident was their second physical altercation. Mother stated she and Father R. had had six prior unreported incidents of domestic violence, including one requiring medical treatment. In February 2018, Mother obtained a temporary restraining order (TRO) against Father R. Mother and the Children moved in with her mother (MGM). MGM reported that C.N. had speech development issues and needed services.
A. Los Angeles Juvenile Dependency Proceedings
On February 23, 2018, LACFS filed a juvenile dependency petition under section 300, subdivisions (a) (serious physical harm) and (b)(1) (failure to protect) on behalf of the Children. The petition alleged Mother and Father R. had a history of domestic violence, including the incident on December 27, 2017. Mother allegedly failed to protect the Children by allowing Father R. to reside in the Children's home and have access to them. During the detention hearing, the juvenile court ordered the Children detained from Father R. The court ordered that the children remain with Mother. In March 2018, the juvenile court granted Mother a TRO, and in April 2018, the court granted mother a three-year restraining order.
LACFS reported in its jurisdiction/disposition report filed in April 2018, that paternal grandmother (PGM) reported Mother was in denial about C.N.'s speech delay and lack of social skills. PGM believed Mother should take C.N. to the Regional Center for an evaluation. The social worker reported that C.N. appeared to be developing below his age appropriate level intellectually and socially. He made noises but did not say comprehensible words or compose sentences of three to four words. He appeared to have difficulty understanding simple questions and did not ask questions. C.N. was unable to say his name. In March 2018, LACFS submitted a Regional Center referral for C.N.
LACFS further reported that in April 2018, the social worker made an unannounced visit to Mother's studio apartment. Mother and the Children slept on a mattress on the floor in the living room. MGM's minor children shared a bed and MGM slept on the floor. The home was adequately stocked with supplies and there were no visible safety hazards. Mother reportedly had demonstrated she was able to "safety plan to prevent future violence." She agreed to be monitored by MGM and live with her. Mother also had a restraining order against Father R. When the social worker interviewed Mother in April 2018, Mother stated she absolutely did not want a relationship with Father R. anymore.
LACFS reported in a supplemental report that Father R. was arrested in April 2018, and convicted in May 2018, of inflicting corporal injury to a spouse/cohabitant (Mother). The court sentenced him to five years of probation and 22 days in jail, and to a work program, with a suspended sentence. Father R. was released on May 9, 2018.
During the jurisdiction hearing in May 2018, the juvenile court sustained the section 300, subdivision (b)(1) allegation (failure to protect). The court dismissed the subdivision (a)(1) allegation (serious physical harm). The Children were declared dependents and placed in Mother's care under the supervision of the LACFS. The court ordered family maintenance services for Mother and the Children, and ordered Mother to keep LACFS informed of her current address. Mother's service plan required Mother to attend a parenting program and individual counseling addressing domestic violence, anger, communication, and coparenting.
In June 2018, the court ordered LACFS to (1) assist Mother with housing referrals, (2) refer Mother to the county department of social services, (3) assess stop funds and any appropriate financial assistance for housing or other shelter, and (4) provide Mother with shelter information.
In November 2018, LACFS filed a status review report stating that Mother was employed and had begun her current job in September 2018. She had continued residing in the same apartment with her Children and MGM. C.N. began attending preschool in August 2018. The social worker reported that, since C.N. had been attending preschool, his speech had become clearer but his speech was not where it needed to be for his age. During C.N.'s annual physical on March 1, 2018, the doctor referred him for further evaluation of his peanut allergy, speech delay, and colorblindness. C.N. was not a Regional Center client.
The social worker reported that C.N. appeared to have a speech delay that needed to be further evaluated for speech therapy, according to his doctor. The social worker acknowledged that C.N.'s speech had improved while attending Head Start preschool but he was still behind. DPSS referred C.N. to the Regional Center in April 2018, but Mother stated she wanted to wait and see how C.N. progressed in school before the Regional Center evaluated him. C.N.'s preschool teacher reported concern regarding C.N.'s speech delay. LACFS reported that Mother's other two children continued to attend daycare. Father R. started a new job in transportation and was attending domestic violence classes. He visited C.N., but not consistently.
LACFS reported that to date Mother had not enrolled in services, including parenting classes and individual counseling. She initially delayed because she was planning to move out of state, but even after she later decided not to move, she still had not begun services. She explained this was because she was waiting to see what her work schedule would be. LACFS recommended in-home services continue. All of the Children still needed to be assessed by the Regional Center and receive services. C.N.'s doctor reported C.N. still had a speech delay. Because the other two children were too young to talk, it was unknown if they also needed Regional Center services. LACFS recommended the Children receive Regional Services, if needed, to keep them on track developmentally. Both C.N.'s doctor and LACFS recommended C.N. be evaluated for speech therapy and enroll in Head Start.
LACFS reported that Mother still needed services and needed to show a change of behavior. LACFS referred the family to Family Preservation but Mother did not respond to the Family Preservation worker, who attempted multiple times, without success, to contact Mother to complete the assessment. Mother placed blame solely on Father for the juvenile dependency proceedings and believed she should not be required to do anything. Mother refused to transport the Children for visits and communicate with PGM, who was monitoring visits. PGM no longer was willing to monitor visits because of Mother's lack of help and communication. During the review hearing in December 2018, the court ordered family maintenance services continued for Mother.
B. Transfer of Case to Riverside County
On March 5, 2019, LACFS reported in a supplemental report that on December 31, 2019, Mother and the Children moved to Riverside County to live with Mother's sister. In March 2019, LACFS filed a motion requesting transfer of the case to Riverside County, and the Los Angeles County Superior Court granted the motion. Also, in March 2019, the Riverside County Superior Court found that Mother and the Children's legal residence was in Riverside County, and accepted transfer of the case. The court ordered a speech assessment and speech therapy for C.N. In addition, the court ordered that C.N.'s school attendance records and speech assessment report be included in the next court report.
In May 2019, the Riverside County Department of Public Social Services (DPSS) reported that the Children remained in Mother's custody on a plan of family maintenance. Mother, who was 23 years old, and the Children were living with Mother's sister and the sister's two children. Mother was unemployed and planned to attend school in July 2019, to become an ultrasound technician. Mother stated she was still legally married to Father R. They were going through a divorce, after a year of marriage. Mother stated she was not currently in a committed relationship with anyone. She explained she moved to Riverside because she was planning to go back to school and she wanted to live in a better, safer environment where she had a support system, which included her sister and other family members. Mother and Father N. did not have any criminal history. Other than Father R.'s recent domestic violence conviction involving Mother, Father R. also did not have any criminal history.
DPSS reported that in March 2019, C.N. was again referred for an evaluation of his peanut allergy, speech delay, and colorblindness. C.N. was meeting most of his developmental milestones, with the exception of a delay in his speech. DPSS was advised a speech assessment was being scheduled by C.N.'s school. C.N. was believed to be attending preschool in Riverside but, when DPSS attempted to obtain his educational records, the preschool could not confirm he was enrolled and indicated C.N.'s parents would have to make the records request.
DPSS concluded that Mother's "case plan progress is minimal and incomplete. [Mother] indicated she started participating in domestic violence counseling in Los Angeles County but she is not currently enrolled in services due to relocating to Riverside County. [Mother's] case plan requires her to participate in domestic violence counseling and parenting education." DPSS also reported that the Children were well cared for by Mother and in a safe environment. However, there was need for continued in home services.
In an addendum report, DPSS reported that on July 1, 2019, C.N. had a well-child examination to assess his speech. The doctor requested that C.N.'s speech assessment be completed when school resumed after summer break. Mother told the social worker C.N. would be starting transitional kindergarten in August 2019. DPSS further reported there was no evidence Mother was participating in any services but was eager to enroll as soon as possible. She was currently enrolled in counseling.
On July 11, 2019, the trial court continued family maintenance services for Mother and ordered DPSS to submit an updated case plan. Mother's updated case plan required her to participate in general counseling, be assessed for mental health services, participate in parenting education, and continue to provide a safe, stable home for the Children.
C. Section 387 Petition
On November 8, 2019, DPSS filed a section 387 petition alleging that the previous disposition was not effective in protecting the Children in that Mother and Father N. had failed to comply with their court-ordered case plans; Mother had failed to participate in counseling and domestic violence and parenting programs; Mother failed to ensure C.N. was enrolled in and attending school; Mother was evading DPSS by moving several times without notifying DPSS; and Mother failed to allow DPSS to have regular access to the Children, as required by court order.
DPSS reported that in August 2019, Mother and the Children failed to attend a scheduled child and family team meeting. On August 19, 2019, DPSS made an unannounced visit to Mother's Riverside home. Mother's home appeared to be vacant and no one answered the door. The second time the social worker attempted to call Mother, Mother answered and said she was in Los Angeles because she had been in a car accident. She said she did not have transportation to get back to her home in Barstow, and did not know how long she would remain in Los Angeles. Mother told the social worker that if she wanted to see the Children, she would have to see them in Los Angeles. Mother also said her boyfriend was taking C.N. to school in Riverside and picking him up afterwards. When DPSS attempted to see C.N. at school that same day, the school verified he was not there.
DPSS called Mother and asked for her current address, noting Mother had provided two different addresses over the past few days. DPSS told Mother it was imperative she provide DPSS with the Children's current address so that DPSS could confirm where the Children were staying. Mother responded by text, providing her address. That same day, DPSS made an unannounced visit at the address in Barstow. Mother answered the door, upset to see the social worker. Mother said C.N. was at school and her boyfriend was picking him up. The social worker told her she had already checked and C.N. was not at school.
Mother initially would not let the social worker inside her home, but after speaking to the social worker's supervisor on the phone, Mother let the social worker inside. Mother explained that she and the Children had been staying there at her boyfriend's apartment for a while. His brother also was staying there but only temporarily. The home was clean with no visible safety hazards. The Children were in the bedroom. They appeared neat, clean, and free from any visible marks or bruises. Mother said she and her boyfriend slept on the floor and the Children all slept on the bed in the bedroom.
On August 27, 2019, Mother texted DPSS, stating she had requested information about housing in Riverside and did not get a response. She again requested DPSS to provide her with the information. Mother also reported she had been participating in counseling for two months and her counseling covered parenting, domestic violence, and anger management. Mother could apply for "Section 8 with the Riverside County Housing Authority" and DPSS could submit a referral that might speed up the process to determine if Mother was eligible. In September 2019, Mother notified DPSS that she had applied for housing and requested a referral to assist in speeding up the process.
On September 27, 2019, DPSS attempted to visit the Children for a monthly visit but was unable to locate Mother's residence. The address provided was at a trailer park. The trailer park manager was unfamiliar with Mother's name. A few days later, Mother told DPSS she worked in Glendale and the Children were in daycare at a home in Los Angeles. The daycare provider did not want DPSS at her home. Mother agreed to meet DPSS at the daycare home during Mother's lunch break. Mother initially provided an inaccurate address for the daycare home but ultimately met with Mother and the Children. The daycare provider brought the children outside her home for DPSS to inspect and interview them. The Children appeared well kept and clean.
In October 2019, Mother told DPSS she was in the process of moving but she would continue to use her Barstow address. Mother told DPSS that C.N. was transitioning to a school near her employment but, until C.N. was enrolled, he would be in daycare in Los Angeles. On October 24, 2019, DPSS contacted C.N.'s school. DPSS was told C.N. had been enrolled in school for a total of 45 days, but only attended five days of school. On October 7, 2019, Mother called the school, requested C.N. be dropped from the school, and stated that she was enrolling him in a school in Los Angeles, near her home. The Riverside School District investigated the matter and did not find anyone at C.N.'s home address provided to the school district. The school district also reported that no one from the Los Angeles School District had requested transcripts or a transfer for C.N. and there was no elementary school with the name Mother had said C.N. would be attending in Los Angeles.
On October 31, 2019, DPSS made an announced visit to Mother's home at 11:00 p.m. Mother had said this was the only time she was available to meet with CFS. After no one answered the door, the social worker texted Mother. She said she had moved to another apartment in the complex because her previous apartment had flooded. The social worker visited Mother's new apartment, which was clean with no visible safety hazards. The social worker noticed clothing in the closet that appeared to be only for a two-year old female child. Mother said that most of the clothes belonged to the Children's cousin but then said they actually belonged to her boyfriend's daughter who visited once a month. Mother's boyfriend said his stepbrother also lived in their home but was rarely home because he was a truck driver. The social worker was not permitted to enter the stepbrother's room.
DPSS further reported that Mother currently was not participating in services. Mother said she had been seeking counseling but had difficulty paying for it. The social worker told Mother she did not have to pay for services. DPSS would pay for them. Mother said she would like services in Los Angeles, near her Children's daycare and her job. Mother reported she worked at a car dealership in Glendale. Mother acknowledged that C.N. was not currently in school. Mother said she tried to get C.N.'s transcripts from Riverside Unified School District but was told she would have to pick them up, which was difficult because she was working. Mother said she planned to have C.N. enrolled in school in Glendale by the next week but was unsure of the name of the school C.N. would be attending.
The social worker told Mother it was important C.N. enroll in and attend school and that, if he did not, Mother could be fined and required to attend a school attendance review board (SARB) meeting. The social worker also told Mother that her boyfriend and his step-brother needed to do a Live Scan background check (Live Scan). Mother's boyfriend said he was willing to do the Live Scan but it was unlikely his step-brother would submit to a background check. The boyfriend said he would get the Live Scan done the following day, after picking up C.N.'s school transcripts. Mother reported her boyfriend did all the driving because she did not drive. Mother provided a work paystub, which showed the address of the Children's childcare provider in Los Angeles. She denied living in Los Angeles. She stated she lived in Barstow. The social worker reminded Mother that she must maintain communication with DPSS, and the Children must be made accessible. The following day, Mother's boyfriend did not appear for his Live Scan background check.
D. Section 387 Petition
On November 8, 2019, DPSS filed a section 387 supplemental petition for removal of the Children from Mother's care. DPSS alleged in the petition and reported in its detention hearing report that DPSS took the Children into protective custody on November 6, 2019, for the following reasons: (1) Mother was not making the Children accessible to DPSS; (2) Mother was evasive about where she was currently residing and DPSS was concerned about with whom she was residing; (3) C.N. was not enrolled in school; (4) C.N. was not participating in speech therapy as ordered by the court; and (5) Mother was not participating in her case plan services.
During the detention hearing on the section 387 petition on November 12, 2019, the court made temporary detention findings and set the matter for a jurisdiction hearing. The court ordered C.N. placed with Father N. and the other two children placed with PGM on an extended visit. Visitation was ordered for Mother.
On December 9, 2019, DPSS filed a hearing report on the section 387 petition. DPSS reported that L.R. was diagnosed with a significant iron deficiency and was at risk of hospitalization. Mother was working full time. She had a stable job and home. She was able to support the Children. Mother reported she had no needs. She also reported that the Riverside School District had evaluated C.N.'s speech and he did not need speech therapy. Mother said C.N.'s teacher told her speech therapy for C.N. was not necessary because he spoke fine. Therefore, Mother concluded she did not have to obtain speech therapy for him. However, Father R. reported he believed C.N. had cognitive delays and had tried to have Mother take C.N. for testing at the Regional Center for cognitive and speech delays but Mother would not listen to him.
DPSS further reported that Mother had moved back to Riverside County and had a home evaluation in November 2019. Mother's home was neat and clean. Mother was referred to services in Riverside County for parenting and domestic violence classes, and for therapy. On December 13, 2019, and January 6, 2020, Mother's therapist attempted to schedule an intake appointment for Mother but could not reach her. DPSS reported the Children were doing well in their placements.
In an addendum report filed on January 22, 2020, DPSS reported that C.N.'s school therapist called Father N. When Father N. returned the call, the school told him the therapist no longer was at the school and C.N. did not need speech services. Father N. said he enrolled C.N. in school on December 11, 2019. On January 22, 2020, DPSS attempted to contact C.N.'s school to confirm C.N. did not need speech services. The school would not verify this until they received an email confirming the social worker's identity. The school did not respond to the social worker's email confirming her identity before the hearing on the section 387 petition on January 23, 2020.
During the hearing on January 23, 2020, the juvenile court sustained the section 387 petition and ordered the Children removed from Mother under section 361, subdivision (c). The parties did not offer any testimony during the hearing. The court noted that, while Mother was on family maintenance, she was required to follow the court's orders, which included that the Children were to be accessible so that the DPSS could interview them and see where they were living. The court further stated that the evidence indicated that Mother was not fully cooperative with the DPSS and did not follow the court's directives. C.N. was not in school and Mother was not participating in reunification services. The court found that Mother had made it difficult at times for DPSS to meet with her and the Children. The court concluded this posed a safety concern and, if the Children remained in Mother's care, there would be a risk of harm to the Children, because they could not be located at all times when DPSS needed to reach them.
The court found true the section 387 petition allegations regarding Mother but ordered the allegations regarding Father N. stricken. The court further found the Children were continued dependents of the court and came within section 387. The court ordered the Children removed from Mother's care and C.N. to remain in Father N.'s care, subject to DPSS's supervision. The other two children were ordered to continue in their current placement. Father N. was ordered to ensure C.N. regularly attended school and obtained the services he needed to meet his specific needs. The court further ordered DPSS to assess whether C.N. needed speech therapy and to follow up with Father N. regarding C.N.'s speech assessment. The court ordered Father N. to have C.N.'s doctor assess whether C.N. needed speech therapy. In addition, the court ordered reunification services and supervised visitation for Mother, and family maintenance services for Father N.
III.
LAW APPLICABLE TO SECTION 387 REMOVAL
Under section 387, subdivision (a), "An order changing or modifying a previous order by removing a child from the physical custody of a parent . . . and directing placement in a foster home . . . shall be made only after noticed hearing upon a supplemental petition." A section 387 supplemental petition for removal requires the following: "The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child . . . ." (§ 387, subd. (a); see In re Joel H. (1993) 19 Cal.App.4th 1185, 1199.)
"Unlike an original petition, a section 387 supplemental petition does not affect the jurisdiction of the court. However, the supplemental petition can have the same drastic result of removing the dependent child from his or her custodial parent. The standard for removal on a supplemental petition is the same as removal on an original petition: the agency must show by 'clear and convincing evidence . . . [t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor' if left in parental custody 'and there are no reasonable means by which the minor's physical health can be protected without removing the minor from [parental] physical custody.' (§ 361, subd. (c)(1); In re Paul E. (1995) 39 Cal.App.4th 996, 1000-1003.)" (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077; see Cal. Rules of Court, rule 5.695(c).)
Findings under section 387 are reviewed "'in the light most favorable to the trial court's order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard.'" (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1239-1240, quoting In re Isayah C., (2004) 118 Cal.App.4th 684, 694.) "To summarize, we hold that an appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (2020) 9 Cal.5th 989, p. 1011-1012.) Upon review for substantial evidence, we do not reweigh the evidence. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650.)
IV.
DISCUSSION
Mother contends the juvenile court erred when it sustained the section 387 petition and ordered the Children removed from her care based on findings that (1) Mother was not making the Children accessible to DPSS; (2) C.N. was not enrolled in school; (3) C.N. was not participating in speech therapy as ordered by the court; and (4) Mother was not participating in her case plan services. We conclude there was substantial evidence supporting the juvenile court's findings and removal order under section 387.
A. Noncompliance With Case Plan
Mother failed to fully comply with her court-ordered services case plan, which required her to attend individual counselling. Mother told the DPSS she had attended domestic violence counseling in Los Angeles. She also attended individual counseling in Riverside but was never formally discharged from counseling because her therapist went on leave and, before she returned, Mother moved. Mother told DPSS she did not participate in additional counseling because she had difficulty paying for it. This was not a valid reason for noncompliance with court ordered counselling because Mother was not required to pay for the counseling, and DPSS explained this to her.
Mother argues that her failure to comply with her case plan requiring counseling did not provide substantial evidence that she posed a serious risk of harm to the Children. Mother asserts there must be more than a failure to comply with her case plan to remove the Children from her, particularly when the circumstances that led to court intervention no longer existed. Domestic violence was no longer a risk factor because Mother had left Father R., and her relationship with her current boyfriend was not violent.
Even though there did not appear to be a current risk of domestic violence, Mother had not completed court-ordered counseling, which was intended to assist her with parenting the Children and keeping them safe. After moving away, Mother failed to arrange for counselling or respond to a therapist's efforts to reach out to Mother to schedule counselling.
We recognize that Mother's failure to complete her service plan by itself does not justify removal. (In re Paul E., supra, 39 Cal.App.4th at p. 1004.) "Section 361 by its terms operates independently of service plans. The test is whether there is clear and convincing evidence the child is in physical danger if left in the home (or already suffering severe emotional damage and there is no other way to protect the minor's emotional health without removal), not whether parents are obeying a service plan." (Ibid.)
While Mother's noncompliance with her service plan, alone, is not sufficient to justify removal of her Children, her failure to participate in court-ordered counselling, in addition to her noncompliance with other court-ordered requirements, provided sufficient grounds for removal of the Children from Mother.
B. Noncompliance With Court Order to Inform DPSS of Current Address and Make the Children Accessible to the DPSS
Mother did not abide by the juvenile court orders to keep DPSS and the court notified of her current address, where the Children were residing, and make the Children available for DPSS inspection. Mother argues she did not do so because she was having financial difficulties, which required her to move several times during the juvenile dependency proceedings. However, Mother's financial difficulties do not excuse her failure to keep DPSS apprised of where she and the Children were living or excuse her not providing DPSS with her current residence address each time she moved with the Children. Mother, no doubt, was aware that, by not providing her current address, DPSS would be unable to make announced and unannounced visits. This created a risk of harm to the Children because DPSS could not check up on them to make sure they were living in a safe home environment and Mother was properly caring for them.
We conclude there was substantial evidence supporting the finding that Mother was evading DPSS contact by moving on several occasions without providing DPSS with her current address until forced to do so. Mother argues she was merely moving because of financial necessity. The evidence in the record, however, supports the finding that she nevertheless did not make an adequate effort to notify DPSS of the location of the Children and Mother's residence, and therefore impeded DPSS's contact with the Children and Mother. DPSS explained to Mother the importance of allowing DPSS to have access to the Children for the purpose of ensuring the Children were safe and well cared for, and Mother did not fully comply with this crucial requirement.
C. Failure to Ensure Regular School Attendance and Speech Assessment
Mother also did not comply with the court's order that C.N. regularly attend school. She enrolled him in kindergarten in August 2019, but then removed him from school after 45 days, and did not re-enroll him. Furthermore, during the 45 days he was enrolled in school, C.N. only attended five days of school. Attending kindergarten was in C.N.'s best interest because the school could evaluate his speech and provide him with speech services. There was also evidence that C.N.'s speech had improved while attending preschool and, therefore, attending kindergarten would likely also be beneficial in this regard as well. Despite the court repeatedly ordering Mother to ensure C.N. regularly attended school, have his speech assessed, and obtain speech therapy, Mother failed to do so.
Mother argues that her failure to ensure C.N. was regularly attending school did not support removing him from her care because C.N. was not legally required to attend school until he was six years old, and he was only five years old. Mother did not raise this argument in the trial court and therefore she forfeited it on appeal. (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249 ["It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.].)
We note that In In re S.B. (2004) 32 Cal.4th 1287, the Supreme Court explained that "[a]lthough the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a 'waiver,' the correct legal term for the loss of a right based on failure to timely assert it is 'forfeiture,' because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the '"intentional relinquishment or abandonment of a known right."'" (Id. at p. 1293, fn. 2, italics added; see People v. Christopher (2006) 137 Cal.App.4th 418, 424, fn. 6.) --------
Furthermore, even though it may not have been illegal for Mother to delay enrolling C.N. in kindergarten, C.N. was of an age in which children commonly begin kindergarten and there was substantial evidence that doing so was in his best interest. In fact, Mother had enrolled him in transitional kindergarten in August 2019, but did not ensure that he regularly attended school, and then withdrew him from school on October 7, 2019. Mother told the Riverside School District she was moving and enrolling C.N. in a school in Los Angeles County, near where she was working, but she did not do so. During a DPSS visit to Mother's home in Barstow on October 31, 2019, Mother admitted she was not living in Los Angeles. She acknowledged she was living in Barstow and C.N. was not currently in school. Mother said she was uncertain of the name of the school he would be attending. C.N. was not reenrolled in school until after the court removed him from Mother's care and placed him with Father N. on November 12, 2019.
We conclude there was substantial evidence demonstrating that it was in C.N.'s best interest to attend school because it benefited him educationally and socially, and likely would have helped him with his speech. It was reported that his speech improved while attending preschool in August 2018, but his speech reportedly was still not at the level it should have been at. Both his doctor and teacher reported concern with C.N.'s speech. His doctor stated C.N. needed to be evaluated for speech services and was referred to the Regional Center for evaluation. Nevertheless, Mother did not follow up on getting a speech assessment or speech therapy for C.N.
Mother argued the school evaluated C.N.'s speech and concluded he did not need speech therapy, but the school's denial that C.N. needed speech services was suspect. Father N. reported that when he returned the school speech therapist's call regarding C.N.'s speech assessment, C.N.'s school told Father N. that the speech therapist was no longer at the school and C.N. did not need speech services at that time. DPSS reported it was unable to confirm this by the time of the section 387 petition hearing on January 23, 2020. The court therefore again ordered that C.N.'s speech be evaluated and, if needed, C.N. receive speech services.
Regardless of whether kindergarten for C.N. was legally mandatory, the record shows Mother was not acting in C.N.'s best interests when she failed to ensure he remain enrolled in kindergarten and regularly attending school. She also failed to have C.N.'s speech assessed, and failed to arrange for C.N. to receive speech services that would have helped him with his speech delay.
Based on the totality of the evidence, we conclude there was substantial evidence supporting the juvenile court's order sustaining the section 387 petition, removing the Children from Mother's care, and placing C.N. with Father N. and the other two children with their PGM. Mother failed to fully comply with her case plan by not continuing counselling; did not expeditiously provide DPSS with her current residence address each time she moved; made it unnecessarily difficult for DPSS to gain access to the Children; failed to ensure C.N. was enrolled in, and regularly attending school; and failed to comply with C.N.'s doctor's requests and the court's orders that C.N.'s speech be assessed and he receive speech services to assist him with his speech delay.
V.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.