Opinion
E081404
12-19-2023
In re A.A., a Person Coming Under the Juvenile Court Law. v. S.W., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas Bunton, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J296172 Steven A. Mapes, Judge. Reversed.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas Bunton, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
OPINION
FIELDS, J.
INTRODUCTION
S.W. (mother) appeals from a juvenile court's dispositional order removing her son, A.A. (the child), from her custody. She contends there was insufficient evidence to support a finding by clear and convincing evidence that there was a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if he was returned home. On the record before us, we agree. Accordingly, we reverse the dispositional order.
FACTUAL AND PROCEDURAL BACKGROUND
On February 28, 2023, the San Bernardino Department of Children and Family Services (CFS) filed a Welfare and Institutions Code section 300 petition on behalf of the child, who was nine years old at the time. The petition alleged that he came within subdivisions (a) (serious physical harm), (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). The petition specifically alleged that mother physically abused the child's older sibling, Az.A., who, as a result, sustained a swollen lip and missing hair, and the child was at risk of similar abuse.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
The allegation under section 300, subdivision (g), concerned A.P.A., the child's father (father), who is not a party to this appeal.
The social worker filed a detention report recommending that the child and his two siblings, Az.A. and Al.A. (collectively, the children), be detained in foster care. She reported that, on February 24, 2023, CFS received a referral alleging that mother physically abused Az.A. Az.A. stated that mother "snatched" the back of her hair out, causing a bald spot. The social worker reported that it was "[u]nknown when the incident occurred." The social worker additionally reported that, on February 12, the police were contacted and told that mother beat up Az.A. and had Al.A. living in a dog cage.
Az.A. and Al.A. are not subjects of this appeal.
However, when the police arrived at the residence, they observed that no one was in the dog cage. Az.A. said she and mother got into a fight, where mother grabbed her by the hair, and she pulled mother's hair, as well. Az.A. said mother slammed her to the ground and started punching her and kicked her in the face. Az.A. had a swollen lip, which she said was from mother kicking her. Az.A. told the police that the relatives who were staying in the home were witnesses to the abuse. However, the four relatives said they had never seen mother put her hands on Az.A; rather, Az.A. was the problem. Mother denied the incident happened and said she did not know how Az.A. sustained a swollen lip. The social worker consulted with dispatch as to the findings regarding the February 12 incident and concluded that "the investigation was unfounded by law enforcement," since the relatives denied that mother physically assaulted Az.A. or caused her swollen lip.
Although it appears unusual for a social worker to consult with "dispatch," this is the exact language used by the social worker in the detention report. We are unsure if this refers to police dispatch or some other dispatch used by the San Bernardino County Child and Family Services Department.
The social worker went to mother's home with a law enforcement officer and interviewed Az.A. Az.A. said that, on multiple occasions, mother punched her or pulled her hair and that, three days prior, mother pulled her hair to the extent that some of it came out. Although Az.A. pointed to the part of her head where she said her hair was missing, the social worker found it difficult to confirm, due to the lighting. Regarding the events reported on February 12, 2023, Az.A. said she and mother had an argument, and mother pushed her outside and shoved her against a wall, dragged her back into the house, then shoved her onto the living room floor and banged her head against the floor by her hair. When Az.A. tried to get up, mother kicked her in the mouth, causing her to have a swollen lip. Az.A. showed the social worker pictures of her lip from the day mother kicked her. Az.A. said the incident occurred in front of her siblings, the maternal grandmother, cousins, and maternal aunt; however, the social worker noted that, when the police interviewed these relatives, they denied the incident happened.
Mother denied abusing Az.A. and said Az.A. would say anything to not be in her home and run away. Mother reported that Az.A. had been running away since she was 10 years old and, at one point, was admitted to a facility in Las Vegas for her behavior. Az.A. was discharged in 2021 and had run away several times since then. Mother reported that, at one point, she and the children resided in a domestic violence shelter for one year and then returned to live with father after he promised to change. However, his behavior became worse, and he assaulted and tortured mother in front of the children. Father was subsequently incarcerated as a result of the incident.
The maternal aunt reported that she had never seen mother place hands on any of the children, that she disciplined them by taking away their electronic devices, and that mother was a good mother who cared for the children.
The social worker observed the child at the door and spoke to him. He denied any worries in the home and denied that he or his siblings were physically disciplined.
The social worker was able to speak with father, who was incarcerated, on February 27, 2023. Father said Az.A. had a pattern of lying, and he was "cautious of whatever [she] discloses."
The court held a detention hearing on March 1, 2023; found a prima facie case; detained the child; and placed him in the relative home of Ms. J.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on March 17, 2023, recommending that the court find the allegation under section 300, subdivision (a) (serious physical harm), to be not true, but find the allegations under subdivisions (b), (g), and (j) true. She further recommended that the children be returned to mother's custody under a plan of family maintenance.
The social worker reported that she interviewed mother on March 8, 2023, and mother denied physically abusing Az.A. Mother reported that Az.A. was in several fights with their neighbors on or about February 12. Mother said she did not physically discipline the children but would take away their electronics. Mother said Az.A. would report false accusations to have a reason to leave home. She further reported that Az.A. was a victim of sex trafficking and was assaulted by several women in December 2022 because she was going to be testifying against someone. Her hair was pulled and her lip "was busted" due to Az.A.'s having braces.
The social worker interviewed Az.A. on March 9, 2023, and Az.A. again stated that, on February 11, she and mother got into an argument; mother and the maternal aunt pulled her into the house; and mother started hitting her. Az.A. reported that mother kicked her in the face, which is how her lip became swollen. Az.A. said she asked the maternal grandmother to stop mother from hitting her, but the grandmother said no. The child expressed how frustrated she was that everyone was "trying to place her as a child who has behavioral issues." Az.A. said she was diagnosed with depression, attention deficit hyperactivity disorder, and bipolar disorder. When asked about Al.A. being placed in a dog cage, Az.A. admitted the allegation was a lie and said her cousin lied to get the police to respond quickly. Az.A. reported that mother had pulled her hair more than once, and that mother" 'whooped, hit, and smacked'" her and her siblings on multiple occasions.
The social worker also interviewed the child on March 9, 2023. She asked him what he liked about mother, and he said she took good care of him and bought him clothes. When asked what he did not like about her, he said he" 'had to sleep at 9:00 p.m. and that's really it.'" The child denied that mother used any physical discipline on him and denied seeing mother physically discipline Az.A.; he believed Az.A. was lying. When asked why Az.A. would lie about Al.A. being put in a dog cage, he said," 'Because she wants us taken away,'" and" '[s]he always says she wants a new mom.' "
On March 15, 2023, the social worker interviewed the police officer who responded to the call on February 12. The officer stated that Az.A. had a swollen lip and scratches on her face, and that Az.A. reported that she and mother had gotten into an argument and pulled each other's hair, and mother pushed her down, and kicked her in the face. Az.A. told the officer there were three people in the home who witnessed the incident. The officer said she interviewed the witnesses, and they all said that Az.A. was lying; that Az.A. abused mother; and that Az.A. got into fights in the apartments. The officer also reported that she observed the child and Al.A., and they had no visible marks or bruises that would indicate abuse or neglect.
The social worker attached a copy of the police report from February 12, 2023, in which the officer reported that mother said Az.A. was a habitual runaway who had a history of harming herself to try to get away from mother and go back to Las Vegas. Mother said she had driven to Las Vegas several times to bring Az.A. back home. The officer reported that one of the witnesses who lived in the home said Az.A. was a problem and did not like to be parented by mother and would be aggressive with her. The officer also reported that, shortly after the police left the residence, Az.A. attempted to run away and mother called them for assistance. Mother was able to get Az.A. in her car and bring her back home. The officer reported that she went to the residence to make sure Az.A. was okay, and Az.A. was very uncooperative and told her to get out of her room. Az.A. told the officer that everyone in the household was annoying, which is why she did not want to be there. The officer warned Az.A. of the dangers of running away, and Az.A. said she did not care and would continue to run away.
The social worker reported that she requested the child welfare history from the Nevada Department of Health and Human Services Division of Child and Family Services (Nevada CFS) on March 14, 2023. The records revealed that, on November 20, 2020, mother was arrested for child abuse of Az.A., since she reportedly hit Az.A. with a power cord, wire hanger, and belt; and Az.A. had bruises on her arms. The social worker asked mother about the charges, and mother denied physical abuse and said the charges were later reduced to disorderly conduct. Mother said the Nevada CFS investigated and found that the allegations were not true and that Az.A. had behavioral issues.
The social worker opined that there appeared to be no detriment to the children if they were returned to mother's custody but recommended removing them from father's custody, since he had been convicted of a felony and was incarcerated. The social worker stated that CFS was "worried that the children are at risk for neglect and/or harm due to [the] previous child welfare history" between mother and Az.A. However, she stated that, to ensure the children's ongoing safety, it was necessary to provide family maintenance services, including individual and family counseling, parenting education classes, and domestic violence classes.
The social worker additionally reported that the child received a Healthy Homes CANS Assessment Report (Healthy Homes report) on March 8, 2023, and attached a copy of the report to the jurisdiction/disposition report. The Healthy Homes report stated that the child was currently residing with his aunt and sisters, seemed to be struggling to adjust to the placement, and was described by the caregiver as "hyperactive, angry, and oppositional." He tended to cuss and talk back to her and did not listen to directives. The caregiver reported that the child was angry at his sister for reporting the abuse that led to their removal from mother's custody. The child shared that he would cry when he thought about mother and felt sad because he was afraid his mom was not going to be his mom anymore. The child disclosed that the caregiver slapped him on the face during an argument that morning, but the aunt denied slapping him. The Healthy Homes report also stated how the child came to CFS's attention in February 2023 and summarized the social worker's report on the investigation of the referral regarding abuse of his older sibling. The Healthy Homes report then opined that the child's living situation and decision making were "impaired based on his frequent arguments and oppositional behavior toward [his] caregiver." The report concluded that the child "meets medical necessity and would benefit from a SATS [(school-aged treatment services)] level of care," and referred him to Victor Community Support Services in San Bernardino.
The court held a jurisdiction/disposition hearing on March 22, 2023, and the matter was set contested on behalf of the children.
The child was placed in a short-term residential therapeutic program (STRTP) on April 6, 2023. Mother's counsel filed an objection to his placement in the program, since mother did not feel a therapeutic group home was appropriate for him. Mother did not believe the child had mental health issues and believed CFS could provide him with therapeutic services outside of a group home.
Although the record is not clear on this point, we surmise that the child was placed in a STRTP pursuant to the Healthy Homes report's referral to the Victor Community Support Services.
On April 25, 2023, the social worker filed an "Additional Information for the Court" (CFS 6.7) memorandum and reported that she interviewed the children again. Az.A. said she believed the child was being coached by the maternal aunt to not speak about the case. Az.A. said that, prior to the March 23 hearing, the child wanted to talk to the social worker about" 'the truth' "; however, once he saw the maternal aunt, he changed his mind. The social worker spoke with the child, and he denied anyone had told him what to say.
On May 3, 2023, the parties met for mediation, which ended in a partial agreement. Mother agreed to submit on the allegations under section 300, subdivisions (b) and (j). CFS agreed to recommend that the children be returned to mother's custody under a plan of family maintenance and find that mother had engaged in her service plan and was willing to facilitate and participate in services for the children. On May 24, mother filed a Waiver of Rights, submitting on the petition.
At a hearing held on May 19, 2023, the children's counsel declared a conflict and asked to be relieved, and the court relieved her. It then appointed separate counsel for Az.A. The child and Al.A. were appointed the same counsel.
The court held a contested jurisdiction/disposition hearing on May 24, 2023. It confirmed that mother wished to submit on the petition and waive her rights, and she accepted her waiver. The court admitted into evidence the detention report, the jurisdiction/disposition report, and the CFS 6.7 memorandum, and then it dismissed the allegation under section 300, subdivision (a) (serious physical harm). The court asked if any of the children's counsel wanted to say anything, and counsel for Az.A. opposed family maintenance, asserting that mother needed to complete reunification services.
The court then asked counsel for the child and Al.A. if he was submitting on the recommendation for family maintenance. Counsel replied, "Only on disposition. I'm all right with [the child] remaining in the STRTP program....[I]t is clear he needs additional help." Counsel said Al.A. was "fine" with mother being on family maintenance. The court noted it did not see any findings and orders for family reunification services for mother, and it told county counsel it would need new findings and orders that were accurate. County counsel agreed to provide such, then said CFS's recommendation was family maintenance for all the children; but her understanding was that the parties had worked out an agreement. County counsel then asked mother's counsel to confirm that mother was agreeing to family reunification as to Az.A. and the child. Mother's counsel responded that mother had filed an objection with regard to the child staying in a STRTP and believed that CFS had not explored less restrictive alternatives other than a residential treatment program; mother believed the child could be placed back in her care and was open to the child receiving therapeutic services. Counsel for the child responded that the report written for the STRTP indicated the child liked the placement, which he confirmed with the child. Counsel added that it was clear the child had issues getting along with peers, and he definitely needed additional therapy. The court stated that the report provided with the STRTP petition was consistent with the child's counsel's representations, and it then found that the child would be at risk if it removed him from the placement; thus, the court overruled mother's objection.
The record on appeal does not appear to contain a report written for the STRTP, unless the child's counsel was referring to the Healthy Homes report. However, that is not clear from the record.
The court stated that it "read and considered" (but did not specify what) and then sustained the allegations under section 300, subdivisions (b) and (g), as to Az.A., and subdivisions (b), (g), and (j), as to the child and Al.A. The court declared the children dependents of the court and proceeded to disposition. The court bypassed father's reunification services and stated: "And, then, SAR for one of the children, and FR for the other two. And, then, I'll review the findings and orders after all counsel's reviewed them. If they're appropriate, I'll sign off on that." The court stated, "For now, since there is a slight disagreement, even though there was an agreement, . . . [p]arents are advised that if they disagree with the Court's ruling, you may seek appellate review."
That day, a revised copy of the findings and orders was filed, which the court signed. The findings included that clear and convincing evidence showed the child and Az.A. should be removed from mother's custody because there was a substantial danger to their health, safety, and physical or emotional well-being if they were returned home, and there were no reasonable means by which their physical health could be protected without removing them. The findings also included that mother had cooperated with the initial services ordered at the detention hearing and had made progress in alleviating the problems. The orders included that Az.A. and the child were declared dependents of the court, removed from mother's custody, and placed in a confidential group home, and mother was to participate in reunification services.
DISCUSSION
The Court Erred in Removing the Child from Mother's Custody
Mother argues there was insufficient evidence on this record to support a finding by clear and convincing evidence that the child would be at a substantial risk of physical or emotional harm if returned to her custody. We agree and conclude the court erred in removing the child from mother's custody.
A. Standard of Review
"Before the court may order a child physically removed from his or her parents, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal." (In re Hailey T. (2012) 212 Cal.App.4th 139, 145-146 (Hailey T.); § 361, subd. (c)(1).) "The court shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).) "Removal 'is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent.'" (Hailey T., at p. 146.) "This is a heightened standard of proof from the required preponderance of evidence standard for taking jurisdiction over a child." (Ibid.) "The standard of review of a dispositional order on appeal is the substantial evidence test." (Ibid.) "We consider the entire record to determine whether substantial evidence supports the juvenile court's findings. [Citation.] 'Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.'" (Ibid.)
B. The Court's Removal Order Was Not Supported by Substantial Evidence
Mother argues there was insufficient evidence to support the removal order under section 361, subdivision (c)(1), since there was no evidence the child would be in danger if returned to her custody. We agree. The record contains no evidence suggesting the child was ever a victim of abuse in mother's home, or that he suffered any harm as a result of the alleged abuse of Az.A. (See Hailey T., supra, 212 Cal.App.4th at p. 147.) The police officer who responded to the call alleging that Az.A. had been abused, reported that the child had no visible marks or bruises indicating abuse or neglect. Further, the relatives who Az.A. claimed were witnesses to the abuse all denied the incident happened and said Az.A. was lying. The maternal aunt reported that she had never seen mother place hands on any of the children, that mother disciplined them by taking away their electronic devices, and that mother was a good mother who cared for the children. Moreover, the child denied any worries in the home and denied that he or his siblings were physically disciplined.
We note the court declared the child a dependent, in light of mother's agreement at mediation to submit on the allegations under section 300, subdivisions (b) and (j). However, the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase, if a child is to be removed from his home. (In re Henry V. (2004) 119 Cal.App.4th 522, 528 (Henry V.).) As discussed ante, the burden of proof at the jurisdictional phase is a preponderance of the evidence. (Hailey T., supra, 212 Cal.App.4th at p. 146.) Even though a child is a dependent, the court cannot remove him from the home "unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no 'reasonable means' by which the child can be protected without removal." (Henry V., at p. 528; § 361, subd. (c)(1).) There was no such clear and convincing evidence before the court of a substantial danger to the child's health or safety.
Notably, the court did not expressly state the facts upon which it based its decision to remove the child (§ 361, subd. (e)), except to say that the child would be at risk if it removed him from the STRTP. On appeal, respondent asserts that the court's order removing the child from mother's custody was based on the social worker's reports, the professional recommendation from the Healthy Homes report, and arguments of counsel. However, in the jurisdiction/disposition report, the social worker opined that there appeared to be no detriment to the child if returned to mother's custody. Although, as respondent points out, the social worker did express concern that the child was "at risk of neglect and/or harm due to previous child welfare history between [mother] and [Az.A.]." Her recommendation was to provide mother with family maintenance services, not to remove the child from her custody.
As to the Healthy Homes assessment, that report merely repeated the history of how the child came to CFS's attention and appeared to be more focused on his trouble adjusting to his placement and his difficult relationship with his caregiver. The report concluded that the child's "living situation and decision-making [were] impaired based on his frequent arguments and oppositional behavior toward [his] caregiver," and opined that he would benefit from a school-aged treatment services level of care. Significantly, the Healthy Homes report did not address or find that the child would be at substantial risk of harm if returned to mother's custody. (§ 361, subd. (c).)
As to the arguments of counsel, we initially note that an attorney's argument does not constitute evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11 [The unsworn statements of counsel are not evidence.].) In any event, respondent points to the argument of Az.A.'s counsel; however, counsel argued that he was opposed to family maintenance with "[his] client" only. Respondent also claims that counsel for the child argued that the child should be removed from mother's custody; however, when the court asked if he was submitting on family maintenance, he merely said, "I'm all right with [the child] remaining in the STRTP program....[I]t is clear he needs additional help." At that point, mother's counsel stated that mother opposed the STRTP and believed CFS had not explored alternative, less-restrictive placements. She also argued that the child could be placed back in her care, and she was open to his receiving therapeutic services. Counsel for the child essentially responded that the child liked the placement and had issues getting along with peers but was working on those issues with therapy currently. The court agreed with the child's counsel's representations, found that the child would be at risk if removed from the placement and, thereby, overruled mother's objection to the placement. In other words, the child's counsel did not argue, and the court did not find, that the child would be at substantial risk of harm if returned to mother's custody. (Hailey T., supra, 212 Cal.App.4th at p. 145; § 361, subd. (c)(1).)
Respondent additionally contends the court properly removed the child from mother's custody because, although he denied any physical abuse in the home, there were concerns that he was coached; further, he reported that mother hit the children on the hand with a belt as a form of punishment during a prior investigation. Additionally, mother was in "ongoing denial" and failed to recognize the negative effects of her conduct. None of these supports the removal of the child from mother's custody. During an interview, Az.A. did tell the social worker she believed the child was being coached by the maternal aunt not to speak about the case. However, Az.A. did not specify what the child wanted to tell the social worker and appeared to be simply speculating that the maternal aunt was coaching him. As to the report that the child previously said mother hit the children on the hand with a belt, the record reflects that the Nevada CFS investigated the allegation and concluded it was unsubstantiated. Finally, in contrast to respondent's claim that mother was in denial and lacked insight about the physical abuse, mother submitted on the allegation that she abused Az.A., and she was willing to participate in services. She was also open to the child receiving therapeutic services to meet his needs.
In sum, there was no substantial evidence that mother inflicted any physical harm on the child or that he was at risk of abuse, and the only evidence that she physically harmed Az.A. was Az.A.'s claim of abuse, which was contradicted by all the relatives who allegedly witnessed the abuse. The evidence may have been sufficient to support the court's determination, by a preponderance of the evidence, that the child was at risk of harm as the sibling of an abused child, and the court could thereby declare him a dependent. However, the proof required to support removal from mother's custody required a greater degree of proof than merely a preponderance of the evidence. On this record, we conclude the evidence was insufficient to support findings under the clear and convincing standard that the child would be at substantial risk of harm if returned home, and there were no reasonable means by which the child could be protected without removal.
DISPOSITION
The juvenile court's dispositional order as to the child is reversed.
We concur: MILLER Acting P.J. CODRINGTON J.