Opinion
C088126
01-28-2020
In re H. G. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. A. W., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD237701, JD237702, JD237703)
Appellant, mother of the minors, appeals from the juvenile court's judgment and orders sustaining a supplemental petition filed on behalf of the minors and removing them from her custody. (Welf. & Inst. Code, §§ 387, 395.) She contends the substantial evidence does not support the juvenile court's finding that placement with mother had been ineffective in protecting the minors and that there was no reasonable means to protect the minors absent removal. We affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Viewed in the light most favorable to the juvenile court's judgment and orders (see In re Autumn H. (1994) 27 Cal.App.4th 567, 576), the following facts appear:
On August 21, 2016, Sacramento County Department of Child, Family and Adult Services (Department) received a referral alleging there was domestic violence between mother and father, in the presence of minors H. (then age 9), M. (then age 8) and P. (then age six-months). The incident appeared to be one of mutual combat between the parents. Law enforcement officers confirmed that there was an extensive history of responding to parents' home and the Department had discussed the effects of domestic violence on the children back in 2011, after an incident that had occurred in the minors' presence. Mother, however, had reported that she did not need services
On August 22, 2016, a social worker attempted to meet with mother at the family home to offer services for the family, develop a safety plan, and assist with temporary shelter. Mother obtained a "peaceable contact" order but did not enter safe housing as scheduled. The Department made mental health referrals for the family to participate in counseling, but mother did not respond to e-mails attempting to set up information supervision services.
In October 2016, the Department received reports that father had come to mother's home on several occasions and broken a window. Mother was requesting supervised visits for father. The social worker subsequently observed parents in a verbal altercation in the parking lot of the minors' school. The school principal and campus security did not have a copy of any restraining order. Mother informed the social worker that M. was so stressed, she was sucking her lip to the point of abrasion and H. was defecating in his pants daily.
On November 9, 2016, the Department filed section 300 petitions on behalf of the minors. Before either parent was notified of the petitions, and after another instance of father harassing mother, father committed suicide. The juvenile court found that there were reasonable services available and necessary to prevent the removal of the minors, set a jurisdiction and disposition hearing, and ordered mental health treatment for the minors, including weekly therapy.
Mother reported domestic violence in the relationship with father but that the impact of domestic violence was "not much" of a role in the minors' trauma. She maintained that the minors were not suffering serious emotional harm or damage as a result of the ongoing domestic violence, but that the minors' trauma was caused by the Department and that the Department had increased the trauma "by instigating it" with "constant" contact by social workers. She further maintained that there were no services that the Department could provide that she herself had not already accessed. She refused to discuss her mental health history, sign a release of information for her own medical/mental health care, or execute releases of information (releases) for the minors' mental and medical health care. Mother also refused to meet with the social worker to develop a case plan and refused to get anyone else involved for the purposes of a support network or to even discuss her support system, and refused to provide any information about her participation in services.
On February 27, 2017, the juvenile court sustained the section 300 petitions. The Department assessed mother as resistant to recommendations for services but recommended the minors remain in the home with maintenance services and court supervision.
On April 24, 2017, the Department received a referral alleging that mother had engaged in physical abuse, excessive discipline and force with M. when she pushed/threw her out of the home causing M. to fall on her back. M. reported that mother picked her up from underneath both arms and threw her outside. She landed on the concrete and remained outside for two to three hours.
On April 26, 2017, the Department received a referral alleging general neglect for H. and mother's failure to meet his basic needs. The reporting party informed that mother was made aware that H. was defecating in his pants almost daily at school and had been acting out and lying to school staff. The school was worried that mother was overwhelmed. The reporting party further reported that when H. had an encopresis episode at school on April 25, 2017, mother was notified, but did not arrive until 5:00 p.m. Mother made H. go out to the playground in his soiled pants and then had him sit in his soiled pants for over an hour during a school association meeting, where the principal noted that H. "stunk" and smelled "really bad."
Encopresis is the soiling of underwear with stool by children who are past the age of toilet training. Because each child achieves bowel control at his or her own rate, medical professionals do not consider stool soiling to be a medical condition unless the child is at least 4 years old.
On May 25, 2017, the juvenile court adjudged the minors dependent children of the court to remain in the care of mother under dependent supervision. Mother was ordered to comply with the case plan and to make the minors available to the Department a minimum of two times per month upon request of the Department, make the minors available to their attorney, to cease communicating with the minors about the case and the Department, to disclose to the Department complete mental health services and background information for the minors, and immediately provide the Department with school information to include behavior contracts, grades, write ups. The minors were ordered to attend weekly individual counseling with parent participation to be at the behest of the therapist with notice to the Department. Mother was ordered to participate in weekly counseling with a Department contracted provider and to address parenting and anger management in her individual counseling, including anger control.
On November 9, 2017, the Department recommended continued in-home services on account of the serious concerns raised by the Department contracted therapist for the minors, Dr. April Hayes, who specifically articulated concerns about mother's supportive capacity and the minors' current and future mental health outlook. After this recommendation was made, the demeanor of mother and minors changed toward the Department social worker; M. admitted that she was scared the Department would remove her from her mother's care and H. was belligerent, threatened to flip-off and lie to any therapist he was required to see, and echoed mother's statements about there being no need for the Department's involvement in their life.
On November 15, 2017, Dr. Hayes informed the Department that the provider would no longer continue therapy for the children due to mother's excessive verbally abusive and threatening behavior toward staff and practitioners, frequent phone calls and text messages, and demands for information from the provider in violation of the releases executed by counsel for the children.
On November 30, 2017, the juvenile court ordered mother, H. and M. to participate in psychological evaluations as recommended by the therapist for the minors to ensure reunification services tailored to the needs of each. The court found that "[t]he children's therapist has raised serious concerns regarding the children's progress in their treatment plans and the evidence of coaching on the part of the mother," and "[t]he mother has obstructed efforts to provide mental health services and is attempting to make contacts [with the children] as difficult as possible." The court found that due to mother's interference in the therapeutic process, the mental health needs were not being met for the minors.
Dr. Elizabeth Solomon conducted the court-ordered psychological evaluations of H. and M. in January 2018. Solomon stated that both minors would benefit from trauma- informed care focused on increasing the sense of safety, managing and resolving distressing feelings and behaviors, understanding potential trauma triggers, conjoint parent component, and group therapy. They would benefit from positive parenting strategies to allow for balance between warmth and firmness with clear boundaries and expectations to support the children, and mother was encouraged to utilize such.
On February 22, 2018, the Department received a referral from a mandated reporter that M. sometimes pulls her hair out while overly stressed, threatened school staff with a pair of scissors and threatened to cut her hair with the scissors, causing school staff to determine that M. was a danger to herself and others. The following day, the Department received a referral alleging physical abuse with excessive discipline and force, when M. disclosed that mother spanks her just to say hello and that people get mad at her.
On March 29, 2018, mother informed the Department that she would not engage with the social worker and to direct all questions/concerns to her counsel.
On April 18, 2018, the Department received a referral alleging physical abuse in that multiple times a week mother punches, slaps, and sits on the minors when they misbehave, and M. had expressed suicidal ideation and attempted suicide by choking herself. On April 19, 2018, M. became upset at school, threatened to bring a gun to school and kill herself and others. School officials had to contact local law enforcement officers to manage M.'s outburst.
On May 14, 2018, the Department filed a section 387 supplemental petition on behalf of the minors. M. had been hospitalized twice for suicidal ideation. One hospitalization occurred when mother informed the children that father had committed suicide. Mother had not informed the social worker of these hospitalizations. M. also reported that mother "sits on us, and beats us up." Further, M. reported that mother spoke negatively about the Department to the minors. The court issued a protective custody warrant and the minors were ordered detained from mother's custody.
An amended section 387 supplemental petition was filed on August 2, 2018. The petition alleged that mother had used excessive physical discipline on the minors since 2011, that mother slapped M. on the face, hands and buttocks as recently as April 2018, and that mother "belittle[d]" the minors. The petition also alleged that mother "influenced" the children not to talk to the Department. The petition alleged M. was suffering and/or was at substantial risk of suffering serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior toward herself and/or others. The Department cited her suicidal ideation, self-injurious attempts, and head-banging. The Department further alleged that mother had failed to care for M.'s mental health by having refused extra therapeutic assistance offered by M.'s school, alienating her from the school and the Department, and failing to provide releases of information for the social worker to receive information about her mental status. Regarding H., the Department alleged that mother took him to receive medical services only twice in 2018, failed to address his encopresis and continued a recent visit "in a small room that smelled like feces," prevented him from accessing appropriate care by alienating him from the Department and school officials, and failed to provide the Department with an appropriate release of information.
The juvenile court found placement of the minors with mother had been ineffective in protecting them and sustained the section 387 petitions. The juvenile court found the minors demonstrated behaviors consistent with emotional damage and found mother had used inappropriate discipline with the minors and had influenced them not to cooperate with the Department. The juvenile court further found that the minors could not be safely maintained in the home because mother would continue to show hostility toward the Department and service providers, would continue to punish the children rather than appropriately discipline them, and would continue to disallow the sharing of information between people trying to help the children -- all of which continued to place the minors at risk of harm. The minors were removed from mother's physical custody and the court ordered family reunification services.
DISCUSSION
I
Section 387 Petition
A section 387 petition is used to change the placement of a child from parental care and custody and place the child in a more restrictive level of care. (§ 387; Cal. Rules of Court, rule 5.560(c); In re T.W. (2013) 214 Cal.App.4th 1154.) "In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been ineffective in protecting the child. (§ 387, subd. (b); rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a dispositional hearing to determine whether removing custody is appropriate. [Citations.] A section 387 petition need not allege any new jurisdictional facts, or urge different or additional grounds for dependency because a basis for juvenile court jurisdiction already exists." (In re T.W., supra, 214 Cal.App.4th at p. 1161.) But the ultimate jurisdictional fact necessary to sustain a 387 petition and the only fact necessary to modify a previous placement is that the previous disposition has not been effective in the protection of the minor. (Ibid.; In re A.O. (2010) 185 Cal.App.4th 103, 110; In re Jonique W. (1994) 26 Cal.App.4th 685, 691; In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) This court reviews an order sustaining a section 387 petition for substantial evidence. (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.)
Further rule references are to the California Rules of Court. --------
To remove a minor from parental custody, there must be clear and convincing evidence that there is or would be a substantial danger to the children's physical health, safety, protection, or physical or emotional well-being, and there is no reasonable way to protect the children from these dangers in the parent's home. (§ 361 subd. (c)(1).) "A removal order is proper if it is based on proof of: (1) parental inability to provide proper care for the minor; and (2) potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re T.W., supra, 214 Cal.App.4th at p. 1163.) In applying section 361, subdivision (c), within the context of a section 387 removal, In re Javier G. (2006) 137 Cal.App.4th 453, noted that "[t]he juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order." (Id. at p. 462.) On appeal, we review the record in the light most favorable to the trial court's removal order to determine whether there is substantial evidence for the juvenile court to make the necessary findings based on the clear and convincing evidence standard. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.)
II
Mother's Response To The Court's Decision
While appellant provided 43 pages of facts in this case, the facts in the opening brief are blatantly biased and self-serving. Most of the aforementioned facts were omitted. On appeal, an appellant must state the facts fairly, in the light favorable to the judgment, or all evidentiary claims are forfeited. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.) The brief must include an objectively complete account of the pertinent facts, rather than only those favorable to the appellant, with specific citations to the record on each point. (Hauselt v. County of Butte (2009) 172 Cal.App.4th 550, 563; Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 591, fn. 8, 593 & fn. 10; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Failure to comply with this principle results in the forfeiture of any claim of error. Accordingly, appellant has forfeited any evidentiary claims she intended to make, and any legal claims dependent on her skewed view of the evidence. Although we will briefly address the merits of her claims, "we will not be drawn onto inaccurate factual ground." (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291.)
Mother contends there was insufficient evidence to support the juvenile court's finding that placement with mother had been ineffective in protecting the minors and that there was no reasonable means to protect the minors absent removal. A review of the evidence, including evidence contained in the record but omitted from mother's brief, belies these claims. In addition to the facts preceding the filing of the section 387 petition recounted above, we recount only some of the additional evidence here.
By May 2018, the Department had found M. had become increasingly despondent and withdrawn. M. had reported being bullied at school and that the principal was a confidant and a support system for her. The Department had learned of a March 21, 2018, incident wherein M. threatened to shoot herself and a teacher with a BB gun, threw a chair and threatened responding law enforcement officers because they were "jerks." After the incident, per mother's demand, M. was no longer allowed to speak with the principal without mother being present, effectively cutting M. off from trusted support. As a result of mother's interference, the principal was hesitant to speak with the Department out of concern about mother's response. Because of mother's complaints to the school district, a student study team meeting occurred that resulted a change in M.'s classroom and reduction in school attendance. When interviewed about the changes, M. informed the social worker that she changed classes because the teacher was a "trigger[]" and the principal is "not dealing with the problem and lies to the district . . . she wants me to have a tantrum so I can get in trouble and be suspended." M. confirmed that is what mother says about the situation. M. further reported that mother "cusses about you guys and says CPS is the bane of our existence" and that "[m]om keeps secrets. She only told us last week that our dad 'murdered' himself."
In an interview, M. reported mother sometimes gets "aggressive like a bear" when whacking her. When mother hits, M. feels like mother does not care about her and that she is a "big bully." M. reported that mother sat on them and beat them up -- meaning slapping, punching, and backhanding them -- two or three times a week. M. testified that, while at home with mother, she had tantrums "at least once or twice a week," and mother "beat my butt or she would lock me outside." Mother would smack her on the face when she put her butt down in response to mother asking to have butt up, and the smacks did not help her tantrums. She would have to go outside when she did not allow mother to spank her or when she kept coming out of her room. When she was forced outside, mother locked the door and she was outside for 30 to 40 minutes. In the winter, mother allowed her sandals and sweater, but mother would not let her wear a jacket because she was being punished. Roughly six to 10 times a year, mother also forced M. to lick soap when she would not allow mother to spank her.
M. testified that she knew that mother did not like to go to therapy because she would moan when having to go, say "ugh" about therapy, and be on her phone texting when the minors had therapy. Mother told M. to talk to the Department contracted therapist or else we will get in trouble. Mother had said they were basically on trial.
Clarissa Castillo, a marriage and family therapist, was employed by Kaiser Permanente where she provided therapy on and off to M. for approximately two years. During that time, she and mother discussed appropriate discipline in the form of behavior modification like charts or rewards, coping skills and the angry monster, and Castillo encouraged mother to use positive parenting even during times of oppositional behavior and noncompliance. Castillo testified that it would be inappropriate for mother to discipline M. with spanking, hitting, slapping, forcibly removing the youth, locking the youth outside of the home, or shoving a bar of soap in the youth's mouth to eat/lick soap and there was no situation where such would be clinically appropriate as it would hinder M.'s therapeutic progress. Mother never disclosed any such parenting to Castillo. Further, Castillo would have made a report to the Department as a mandated reporter if mother or M. had disclosed such and would have deemed "Flexible Integrated Mental Health Services" (FIT) medically necessary for M. if she was made aware of such parenting. Further, Castillo would have made different recommendations for mother if she had been aware of the inappropriate responses, including individual sessions with mother and parenting groups.
After M. was released from the emergency department following suicidal ideations in April 2018, Castillo informed mother of these available FIT services, a more intensive voluntary service available to youth who have been assessed for psychiatric hospitalizations that provides at least weekly therapy, parenting support, and community services. Mother declined these services for M. because she was concerned that the Department would gain access to information. The social worker attempted to obtain details regarding M.'s therapy but was advised that the release of information allowed only discussion of prognosis, attendance, and diagnosis. Thereafter, even that release of information was removed. The Department had tried to arrange FIT services for the family but the service could not be authorized without mother's consent and mother had refused.
Kaiser Permanente therapist Laureen Phillips had been providing therapy for H. since October 2016. Before the minors were removed from mother's custody, Phillips had only two sessions with H. in 2018. Phillips described H. as being diagnosed with adjustment disorder with anxiety, shut down about his feelings, having difficulty asking for support or expressing his feelings, having encopresis, and that he had gone through trauma related to the death of his father and the domestic violence in the home. She had recommended FIT services for H. in July of 2017. Phillips testified that it was important for H. to feel safe in the home as a child who has gone through trauma naturally feels less safe, that it is important to really create a sense of safety for a child, like H., and she would not recommend corporal punishment, or the witnessing of such, and that in the event that occurred she would likely increase services. She had also discussed with mother in August 2017 that H. was not able to express and cope with his feelings and it would be overwhelming for him to hear how his father died.
H. reported that the Department and court are "idiots," the court sets parents up like "they are criminals," and that after mother told him this information within the last three months, he had done research to confirm it as true. H. confirmed that mother locks M. outside during tantrums approximately two times per month. Everyone, including mother, thinks M. is being dramatic. H. then stated that he should not have told the social worker the information since it was being written down. H. confirmed that mother told them father had killed himself and had disclosed this information while M. was having a meltdown and threatening to use self-harm. H. stated that he did not feel like mother's home was a safe environment because M. has tried to harm P.
The minors' grandmother reported that H.'s encopresis had never stopped, that she had to do laundry for H. whenever he would visit while in mother's care, and that mother punishes and shames H. when his encopresis occurs. The paternal aunt reported mother threatens H. with punishment for his encopresis.
CONCLUSION
Presented with these facts, it is clear that the previous disposition of placement with mother with family maintenance services had been ineffective in protecting the minors and removal was necessary to protect them from further harm. There was substantial evidence to establish that, instead of creating the safe and supportive environment the minors need, mother was using inappropriate physical discipline on M. and hindering her therapeutic progress, belittling H. regarding his encopresis, refusing additional therapeutic services for M., alienating M. from her sources of support at school, and failing to take H. to therapy on a regular basis. Instead of cooperating with the Department, mother improperly discussed her negative opinions of the Department, court, and these proceedings with the minors, refused to communicate with the social worker, and limited the Department's access to details regarding the minors' therapy. After two years of family maintenance services, the minors were decompensating, rather than improving, in mother's care. The danger to the minors' physical and emotional well-being should they remain in her care is apparent.
Substantial evidence supports the juvenile court's findings and orders.
DISPOSITION
The judgment and orders of the juvenile court are affirmed.
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Murray, J.