Opinion
E073466
03-09-2020
In re D.H. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.S., Defendant and Appellant.
Shobita Misra, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Jamila Bayati, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J280911 & J280912 & J280913 & J280914 & J281624) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Shobita Misra, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Jamila Bayati, Deputy County Counsel for Plaintiff and Respondent.
In issuing a disposition order, the juvenile court removed four children from the care of D.S. (Mother). (Welf. & Inst. Code, § 361, subd. (c).) Mother contends (1) substantial evidence does not support the finding that her three youngest children were in danger in her care; (2) substantial evidence does not support the finding that reasonable efforts were made to prevent the need for the children's removal; and (3) substantial evidence does not support the finding that options other than removal of the children were considered. San Bernardino County Children and Family Services (the Department) contends Mother's appeal should be dismissed. We affirm the judgment.
All subsequent statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Mother was born in April 1979. Mother was four years old when she was raped. Mother lived with her grandmother from ages four to eight. Mother lived in foster care from ages eight to 14. Mother was returned to the care of her mother at age 14. "[Mother] stated that 'it ruined her life being put back with her mother.' Her mother physically and verbally abused her. Her mother and father were on drugs. Her father was in prison for raping her mother. Her mother gave her father all their money so they starved. She was sexually abused although she states that she knows who supposedly did it, but she doesn't think it really happened and wants to see her CPS file."
Mother has seven children, some of whom are now adults: (1) S.S., a male born in 1997; (2) D.S., a female born in 1998; (3) J.S., a female born in 2003; (4) E.S., a male born in 2006; (5) L.H., a female born in 2012; (6) D.H., a male born in 2016; and (7) D.Q, a male born in 2019. S.S.1 is the father of S.S. and D.S. J.S.1 (Stepfather) is the father of J.S. and E.S. A.H. is the father of L.H., D.H., and D.Q.
In April 2009, in San Diego, Stepfather sodomized D.S. D.S. reported the crime to a nurse at an emergency room. Mother refused to name the perpetrator and left the hospital before D.S. could be examined. Mother told the San Diego social worker that she wanted D.S. to take a polygraph test. Stepfather admitted to the San Diego police that he sodomized and digitally penetrated D.S. S.S., D.S., J.S., and E.S. were detained by San Diego County's Child Welfare Services in April 2009.
In August 2009, the San Diego County juvenile court ordered S.S. and D.S. be placed with their father, in Georgia, and the court terminated its jurisdiction over S.S. and D.S. J.S. and E.S. remained in foster care. In 2010, Mother received a psychological evaluation. Mother was diagnosed with narcissistic personality disorder. Narcissistic people "tend to exploit other[s] in order to meet their own needs." The doctor found that Mother "requires a great deal of attention[,] . . . tends to be interpersonally exploitive, and takes advantage of others in order to achieve her own needs. She appears to lack empathy in terms of being unwilling or unable to recognize and identify the feelings and needs of others." The doctor who evaluated Mother concluded Mother "requires long-term intensive psychotherapy with psychiatric intervention."
In April 2011, J.S. and E.S. were placed with their maternal great-aunt (Aunt) in Ohio. In March 2012, Aunt obtained guardianship of J.S. and E.S. In May 2013, Aunt said she wanted to adopt J.S. and E.S. Mother requested the children be removed from Aunt's home (§ 388). In April 2014, J.S. and E.S. were returned to San Diego and placed in foster care. In August 2014, J.S. and E.S. were placed with their paternal aunt. In August 2015, J.S. and E.S. were placed in Mother's care, in Ohio.
In 2018, the family resided in Akron, Ohio, which is in Summit County. On November 27, 2018, Summit County Children Services (SCCS) met with Mother to discuss E.S. Mother said "she wanted to relinquish her parental rights." SCCS discussed other options with Mother. In January 2019, Mother and the children moved to California. Ultimately, SCCS decided to seek emergency temporary custody of E.S.; however, at that point, Mother had moved to California.
According to E.S., Mother smoked marijuana every day, approximately twice per day in 2019. Allegedly, Mother did not smoke marijuana around the children; however, E.S. was aware of Mother's marijuana habit and how often she smoked. According to Mother, she stopped abusing drugs in 2016.
B. DETENTION
On April 9, 2019, the Department received a referral alleging Mother neglected and emotionally abused E.S. The reporting party said Mother did not want E.S., and that Mother "locks herself and the other children in her room at night because she is afraid that [E.S.] is going to molest them because he watches pornography."
On April 16, a Department social worker met with E.S. E.S. said that Mother tells him, " 'I don't like you no more,; and 'I can take your life if I want to.' [E.S.] said [Mother] has threatened to 'Drive me off the road and kill me.' [E.S.] said he is 'kinda' scared of [Mother's] threats as he feels she may follow through with those threats. [E.S.] said, last year [Mother] threatened to 'beat my ass.' [E.S.] reported [Mother] has a history of punching him in the ribs, has slapped him across the face, has hit his hands with a large plastic spoon, and has given him 'whoopins' with a paint stick, a belt, a spoon, and also her hand." E.S. "is aware [Mother] does not want him." "[E.S.] was very calm and relaxed when speaking to the [social worker]."
The Department social worker met with Mother. Mother said E.S. "is diagnosed with ADHD, PTSD, OCD, . . . psychosis and extreme depression, and was prescribed Zoloft and Seroquel." Mother said she left E.S. at a youth shelter, in Redlands, without his prescription medication. Mother told the Department social worker that E.S. "needed to be admitted into a mental institution," but she refused to sign paperwork allowing the Department to detain E.S.
The social worker informed Mother that E.S did not "meet the criteria for an inpatient or residential program." Mother asserted the Department could have E.S. "admitted into a mental hospital." When the social worker disagreed with Mother, Mother cried and said E.S.'s "father is in jail for raping his sister, and that his dad was 'mental.' She said she did not want [E.S.] to end up like his father, that she did not want her son to end up in jail." Mother said that if the social worker "could not help her, that she would take [E.S.] to the Crisis Walk-In Center, 'and they'll admit him.' " Mother ended the meeting with the social worker. Mother took E.S. to the Crisis Walk-In Center, but they did not admit E.S. to a mental health center. Mother said she planned to take E.S. to the Crisis Stabilization Center in San Bernardino. E.S. was not admitted to an inpatient program.
On April 27, Mother reported E.S. ran away. Law enforcement did not believe E.S. ran away because he was located walking down the street near the family's residence. Mother became upset with law enforcement because they would not take E.S. into custody. A San Bernardino County Sheriff's deputy explained to Mother that "there was no reason to detain [E.S.], and [Mother] became aggressive with him. [The deputy] said [Mother] told him that she did not want [E.S.], and that she wanted to relinquish her rights." The deputy told Mother to contact the Department if she wanted to relinquish her rights. Mother told the deputy that the Department refused to take E.S.
On May 2, the Department detained E.S at school. The Department asked Mother to provide the Department with E.S.'s clothes, medications, and cell phone. Mother said she did not know where E.S.'s clothes were and that he did not have any medications. The Department informed Mother that all of her children should be present at the detention hearing.
On May 6, in a telephone conversation, Mother told a Department social worker that the children were on their way back to Ohio, where they were moving. On May 7, the juvenile court held the detention hearing in the case. Mother testified at the detention hearing. Mother said the children were in a car on their way to Akron, Ohio. Mother's attorney said Mother would have the children returned to California if the court ordered they be returned. The juvenile court ordered all four children be detained.
C. JURISDICTION AND DISPOSITION
E.S. was placed in a foster home. J.S. ran away while in Ohio, in May, and her whereabouts were unknown, so a warrant of apprehension was issued for her. On May 21, Department social workers went to Ohio and detained L.H. and D.H. When the social workers detained the two children, the social workers spoke to the children's maternal aunt. The maternal aunt said " '[Mother] is "mean" to [E.S.] and wants him committed.' " L.H. and D.H. were placed together in a second foster home in California.
Also on May 21, Mother gave birth to D.Q., in Ohio. On May 22, SCCS detained D.Q. On June 19, the Summit County juvenile court transferred D.Q.'s case to the San Bernardino County juvenile court. D.Q. was detained by the Department on July 2. D.Q. was placed in a foster home separate from his siblings. On July 8, the juvenile court found a prima facie case had been established for D.Q.'s out-of-home detention.
A Department social worker interviewed E.S. at his foster home. E.S. said Mother would sometimes discipline him by not allowing him to use the restroom for over an hour when needing to urinate or defecate. E.S. said he sometimes did not feel safe at home with Mother. E.S. explained, " '[Mother] used to tell me that she'll bash my head in with a lamp and she brought me in this world and she can take me out.' He further explained [that] she would call him 'Bitches and that I was retarded and stuff like that. It made me feel like she didn't want me there and when she said that I just left the house. . . . He explained that [Mother] has told him that she does not want him stating, 'She said that one time before the social workers were even involved . . . and she said that she was going to relinquish her rights and several times she would drive us off the bridge and stuff like that.' When asked how that made him feel he told the [social worker], 'Scared. She always talks about how she could whoop me and when she gets mad, she says I'll get your cousin to beat your ass. . . . She tries to get rid of me a lot. She tries to put me in psych facilities.' " E.S. said Mother would tell the facilities that E.S. was suicidal. E.S. told the social worker, "I've never had suicidal thoughts. I know I have trouble with impulse control, but she's the only one that ever told me that I need to be in a psych facility."
E.S. said he did not feel that he needed psychiatric medication, but that he had been diagnosed with depression and prescribed Seroquel. E.S. said Mother failed to have his prescription refilled, so E.S. had to do it himself. E.S. said that if he relied on Mother to refill his prescription, then he would have to " 'go without [his] meds.' " E.S.'s foster parents said, " 'He's been really good at home' with no problems or issues of concern at this time."
On August 16, the juvenile court held a contested jurisdiction and disposition hearing in the case. Mother did not offer any affirmative evidence at the hearing; however, she said J.S. was staying with an aunt in Cleveland, Ohio. Mother "stipulated to stip to cause of action for jurisdiction." The allegation to which Mother stipulated was as follows: "The child, [E.S.] has been diagnosed with depression and psychosis, which requires outpatient psychiatric care; however, the mother has not followed through with doctors' orders or treatment recommendations." (§ 300, subd. (b).) The juvenile court found the foregoing allegation to be true.
The juvenile court also found true the allegations that (1) E.S. was "previously removed from the care of the mother for exposing the child to a chaotic home environment leaving the child in an unsafe situation which placed the child at risk of neglect and emotional abuse" (§ 300, subd. (b)); (2) L.H., D.H. and D.Q.'s "half-sibling, [E.S.], suffered emotional damage while in the care and custody of the child's mother; therefore, the child[ren], [L.H., D.H., and D.Q., are] at risk of suffering serious harm while in the continued care and custody of [Mother]" (§ 300, subd. (j)); and (3) L.H., D.H., and D.Q.'s "half-siblings were previously removed from the care of the mother for the mother exposing the half-siblings to a chaotic home environment leaving the child[ren, L.H., D.H., and D.Q.], in an unsafe situation, which placed the child[ren] at risk of neglect and emotional abuse" (§ 300, subd. (b)).
In regard to disposition, Mother asserted the Department's concerns involved E.S., so the three youngest children—L.H., D.H., and D.Q.—should be placed in Mother's care. The children's attorney requested the children not be placed with Mother. The children's attorney said, "[T]he allegations that were sustained were due to her behaviors, not the minor [E.S.], and I would ask the Court to follow the recommendation."
The juvenile court said, "I'll note that the concern also is the number of attempts Mother made in order to, for lack of [a] better word, turn her child [E.S.] over to someone despite multiple professional evaluators not finding an issue. [¶] And it would appear she came to California after not getting a satisfactory answer in Ohio and this has been going on quite some time. [¶] . . . I do find that out-of-home placement is appropriate and necessary." Mother's case plan included a psychological evaluation, individual therapy, and parenting classes.
DISCUSSION
A. REMOVAL
Mother contends substantial evidence does not support the finding that L.H., D.H., and D.Q. would be endangered in Mother's care.
"A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [¶] [t]here 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 there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).)
We apply the substantial evidence standard of review. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.) Under this standard, we "review the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. [Citation.] Substantial evidence 'means evidence that is "reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case." ' " (Ibid.)
E.S. said that Mother failed to provide him with his prescription medication. E.S. said that if he did not refill his prescriptions himself, then he would " 'go without [his] meds.' " When D.Q. was three days old, he fell from a sofa while in foster care, in Ohio. D.Q. suffered swelling on his head. He was admitted to the hospital on May 23 and discharged on May 24. At the jurisdiction/disposition hearing, on August 16, Mother said D.Q. suffered a hematoma and had a bump on his head. Mother said, "It is a major concern and he does have a neurologist appointment set up."
Mother's failure to provide E.S. with prescribed medication supports a finding that D.Q. would be in danger if placed in Mother's care. According to Mother, D.Q. may have neurological issues, and Mother has demonstrated a failure to follow doctor's directions related to E.S. One could reasonably infer that, if the neurologist provided directions for D.Q.'s care, Mother would fail to follow those directions, similar to how she failed to provide E.S. with prescribed medications. As a result, we conclude substantial evidence supports the findings that D.Q. would be in danger if returned to Mother's care.
Additionally, E.S. reported that Mother said " 'several times she would drive us off the bridge and stuff like that.' " Mother's threats caused E.S. to feel scared. E.S. said he felt less scared when the three children's father, A.H., was present, although E.S. was also scared of A.H. One can infer from E.S.'s statement—that he felt less scared when A.H. was present—that Mother made her threats in the presence of others, not merely when she was alone with E.S. If L.H. and D.H. were to hear Mother's threats to "drive us off the bridge," they may also feel unsafe in Mother's presence, thus placing their emotional wellbeing at risk.
Further, as a punishment, Mother prohibited E.S. from using the restroom when he needed to urinate or defecate. Preventing a child from using the restroom when needed could lead to physical harm, as the child may suffer adverse health consequences from not having a hygienic means to relieve himself or herself. Preventing a child from using the restroom could also lead to emotional harm, as the child may suffer prolonged negative emotions if the child unintentionally soiled himself or herself in front of others due to being prohibited from using the restroom. Because Mother used this form of punishment with E.S., it is reasonable to infer she would use the same form of punishment with the three children, thus placing them at risk of harm.
In sum, evidence of (1) failure to provide medication; (2) threats of injury; and (3) prohibiting use of the restroom, supports the juvenile court's finding that the three children were at risk of danger if returned to Mother's care. Therefore, we conclude the juvenile court did not err.
B. REASONABLE EFFORTS
Mother contends the juvenile court erred in finding the Department made reasonable efforts to prevent the removal of the three children.
In Mother's appellant's reply brief, she asserts the Department "essentially concedes" this issue by offering a minimal and circular argument in opposition. The Department failed to argue the issue under a separate point heading, but it did provide a short opposition to the issue. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Accordingly, we do not treat the issue as conceded. (Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 505.)
"The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home." (§ 361, subd. (e).) "[R]easonable efforts, like reasonable services, need only be reasonable under the circumstances, not perfect [citation]." (In re H.E. (2008) 169 Cal.App.4th 710, 725.) We apply the substantial evidence standard of review. (In re Ashly F. (2014) 225 Cal.App.4th 803, 809.)
The Department was concerned that Mother suffered from a psychiatric illness that prevented her from providing reasonable care for her children. The juvenile court held a detention hearing on May 7, 2019. At that time, Mother was in California. On May 21, in Ohio, Mother gave birth to D.Q. On May 22, SCCS detained D.Q. SCCS told the Department that Mother would undergo a psychological assessment before being discharged from the hospital to determine if Mother needed inpatient psychiatric services; it is unclear if that evaluation took place. On June 19, the Summit County juvenile court transferred D.Q.'s case to the San Bernardino County juvenile court. On June 21, Mother was in California. On July 8, Mother was in Ohio but had plans to move to California. On July 29, Mother was in court, in California. The jurisdiction/disposition hearing took place on August 16, 2019.
The services provided to Mother in Ohio included four therapy sessions, assistance with housing plans, and a 16-session parenting program, which Mother completed. The services provided to Mother in California included drug tests. Mother was also receiving services from the Community Health Department at St. Mary Medical Center in Apple Valley. Those services included housing referrals, forms for Cal-Fresh, and contact information for medical providers.
Mother was back and forth between Ohio and California from May into July. The services provided to Mother in Ohio included therapy and a parenting program. Those services are responsive to the problems that led to the removal of the children, such as Mother's failure to provide E.S. with proper medical care and inflicting emotional damage on E.S. The parenting classes would help Mother with learning to be responsible about a child's medical needs, and the therapy would help with emotional awareness. The drug tests provided by California would assist in determining if drug use was contributing to Mother's negative behaviors. Thus, the services provided to Mother, while she was traveling between Ohio and California, were responsive to the issues that caused the children to be removed from her care. Therefore, there is substantial evidence supporting the finding that reasonable efforts were made to prevent the children's removal from Mother's care.
Mother contends that the services provided to her in Ohio were not provided as a result of referrals from SCCS, rather, they were services that Mother obtained for herself. Assuming Mother is correct that SCCS did not provide her with referrals for services, then the evidence supports a finding that the few services provided were reasonable under the circumstances because Mother constantly moved back and forth between Ohio and California, such that it would have been difficult for anyone to know whether to provide Mother with referrals for services in Ohio or California. For example, at the hearing on July 8, Mother was in Ohio but had plans to move to California. In sum, the evidence that Mother was repeatedly coming and going from California supports a finding that, under the circumstances, reasonable efforts were made.
C. OPTIONS OTHER THAN REMOVAL
Mother contends the juvenile court erred by finding there were no options for protecting the three children other than removing them from Mother's care.
In Mother's appellant's reply brief, she asserts the Department "concedes, in effect" this issue by failing to provide any record citations in support of its argument. The Department failed to argue the issue under a separate point heading, but it did provide minimal opposition to the issue. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Accordingly, we do not treat the issue as conceded. (Griffin v. The Haunted Hotel, Inc., supra, 242 Cal.App.4th at p. 505.)
"A dependent child shall not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence . . . [¶] [t]here 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 there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) We apply the substantial evidence standard of review. (In re D.G. (2012) 208 Cal.App.4th 1562, 1574.)
Mother completed her parenting class on June 26, 2019, and participated in four therapy sessions. However, SCCS and the Department believed Mother needed a psychological evaluation. There was no record of Mother undergoing a psychological evaluation to determine if she required psychotropic medication. The foregoing evidence supports a finding that until Mother was evaluated by a psychologist and (1) found to not need treatment, or (2) benefitted from any prescribed treatment, there was no other option than to remove the children from Mother's care. Returning the three children to Mother's care, on a plan of family maintenance, would not provide a sufficient means of protection for the children because Mother might repeatedly tell L.H. and D.H. that she would drive them off a bridge or she might fail to provide D.Q. with necessary neurological care. In sum, we conclude the juvenile court did not err.
D. DISMISSAL
1. DISENTITLEMENT
The Department contends Mother's appeal should be dismissed. The Department asserts the disentitlement doctrine bars Mother's appeal.
"The disentitlement doctrine enables an appellate court to stay or to dismiss the appeal of a party who has refused to obey the superior court's legal orders. [Citation.] 'Dismissal is not " 'a penalty imposed as a punishment for criminal contempt. It is an exercise of a state court's inherent power to use its processes to induce compliance' " with a presumptively valid order.' [Citation.] Thus, the disentitlement doctrine prevents a party from seeking assistance from the court while that party is in 'an attitude of contempt to legal orders and processes of the courts of this state.' " (In re Marriage of Hofer (2012) 208 Cal.App.4th 454, 459.)
The Department asserts Mother frustrated the efforts of the Department by (1) agreeing to bring the children to the Department for interviews and then failing to appear; (2) coaching the children on how to respond to interview questions; (3) lying about her residence, substance abuse, and criminal history; (4) moving back and forth between Ohio and California; and (5) permitting J.S. to be a runaway.
The paramount concern of any dependency proceeding is the child's best interests. (In re Josiah Z. (2005) 36 Cal.4th 664, 673.) Because we are focused on what is best for the children, we chose to address the merits of Mother's contentions. We decline to discuss whether there is evidence in the record indicating that Mother's behavior toward the Department would demonstrate an attitude of contempt toward the juvenile court. The Department's request for the appeal to be dismissed is denied.
2. JUSTICIABILITY
Next, the Department contends Mother's appeal should be dismissed because the issues are not justiciable. The Department asserts the sustained allegations "alone demonstrated the children's removal was warranted pursuant to section 361, subdivision (c)(1); hence, [Mother's] challenges are not justiciable." Further, the Department asserts Mother's appeal is not justiciable because, at times, Mother was homeless and; at times, Mother was residing with A.H., with whom she had a history of drug abuse and domestic violence.
The concept of justiciability has two elements: (1) ripeness, and (2) standing. (Sherwyn & Handel v. Department of Social Services (1985) 173 Cal.App.3d 52, 57; Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.) The Department's argument does not focus on ripeness or standing. Therefore, we find its argument about justiciability to be unpersuasive. The Department's request to dismiss Mother's appeal is denied.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.