Opinion
D073816
08-10-2018
In re J.A., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. F.M., Defendant and Appellant.
Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Georgia Gebhardt, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519617) APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed. Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Georgia Gebhardt, Deputy County Counsel, for Plaintiff and Respondent.
F.M. appeals the juvenile court's dispositional order removing her minor son, J.A., from her care. F.M. contends the court erred by finding there was a continuing substantial danger to J.A. and that J.A. was at risk of suffering severe emotional damage in her care. F.M. also contends the court erred in finding the Agency made reasonable efforts to keep J.A. in her care. We reject these challenges and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Throughout 2017, the San Diego County Health and Human Services Agency (Agency) investigated several referrals about J.A.'s family, which alleged verbal and physical abuse in the home. J.A. lived with both of his parents and his three siblings, who were three, six, and ten years old when the referrals were made. In the initial investigation, F.M. alleged that J.A.'s father, Jose A., was violent towards F.M. and J.A. and J.A. told a social worker that Jose was an alcoholic. F.M. and Jose also reported that Jose worked in Los Angeles during the week and most of the household duties and the care of the couple's four children fell on F.M.
In early August, the Agency received a new referral alleging then nine-year-old J.A. had reported that F.M. physically abused him. As a result, the Agency began a more sustained investigation, during which J.A. disclosed to a social worker that F.M. hit and slapped him, pulled his hair, and hit him with physical objects, including a belt, a shoe, and a plastic spatula. J.A.'s six-year-old sister told the investigating social worker that she had seen her mother hit J.A. with a belt or a shoe, and that F.M. disciplined J.A. the most because he misbehaved a lot.
F.M. admitted to the Agency's social worker that she used physical discipline with J.A., including hitting him with a shoe, belt, and plastic spatula. She also acknowledged slapping J.A. in the face. F.M. told the social worker that she used physical discipline as a last resort, and that it was the only way she could control J.A.'s difficult behavior. Jose told the social worker that he and F.M. both used physical discipline. J.A. was also struggling in school, and his teacher and other school staff reported that J.A. was physically violent and threatening to staff members and other students.
As a result of the investigation, the Agency created a safety plan with the family that required F.M. and Jose to refrain from physical discipline. The Agency also referred F.M. and Jose to parenting resources, and provided a psychologist referral to assess J.A.'s behavioral issues. Under the safety plan, F.M. and Jose also agreed third parties could check on the family and that they would allow unannounced visits from the Agency's social workers. Despite the assistance, the family continued to struggle with J.A.'s extreme behavior. On August 23, 2017, F.M. called the police because J.A. had run away from home. When the police arrived, J.A. was located, and returned to his parents' care. After the police left, however, J.A. and F.M. continued to quarrel and J.A. ran away a second time, prompting F.M. to call the police again.
When the police arrived, J.A. was extremely distressed. He told the responding officers that he hated everyone and to "[j]ust kill me now." Because of this suicidal statement, J.A. was taken to the emergency room. The medical staff at the hospital assessed J.A. and determined he did not meet the criteria for admission. J.A. was discharged in the early morning hours of August 24, 2017, after F.M. met with the Agency's social worker and agreed to another safety plan, which included following up with a therapist and keeping all dangerous items in the family's home under lock and key. Thereafter, J.A. was seen by a mental health professional who confirmed J.A.'s diagnosis of attention deficit and hyperactivity disorder, and prescribed medication.
In a subsequent interview with the social worker on September 12, 2017, F.M. stated that the police had been called again after J.A. told the school psychologist that he wanted to hurt himself. J.A. was not taken to the hospital, but was released to F.M. F.M. also told the social worker that she thought that the medication prescribed for J.A. was causing him to act more aggressively, so she took him off the medication. After this interview, F.M. stopped communicating with the Agency.
On October 26, 2017, the Agency received a new referral alleging F.M. hit J.A. with a shoe, causing an abrasion on his face. F.M. admitted she hit J.A. with a shoe to discipline him. F.M. told the Agency's social worker that J.A.'s behavior continued to be out of control both at home and at school, and that she was overwhelmed and had limited support. F.M. told the social worker she did not want to medicate J.A. and instead preferred to use homeopathic medicine, and had started some homeopathic treatments. J.A.'s fourth grade teacher, the school psychologist, and his instructional assistant reported that J.A.'s behavior at school had worsened, and he would often refuse to participate in class, and instead would wander campus. School staff also reported it was hard to reach F.M. when J.A. was acting out.
The Agency again tried to implement safety planning and support services for the family, but F.M. was not receptive. F.M. refused referrals for behavioral intervention services and therapy, although she did indicate she would seek treatment for J.A. in Tijuana, Mexico. The Agency continued to monitor the family and J.A.'s progress at school, where his behavior continued to deteriorate. On November 17, 2017, the Agency filed a petition on J.A.'s behalf under Welfare and Institutions Code section 300, subdivision (a), alleging there was a substantial risk that J.A. would continue to suffer serious physical harm by a parent. The petition elaborated that F.M. had used excessive physical discipline on an ongoing basis, including hitting J.A. with a belt and shoe, and that the multiple safety plans implemented by the Agency were unsuccessful in mitigating the risk to J.A.
Subsequent statutory references are to the Welfare and Institutions Code.
At the November 21, 2017 detention hearing, the Agency recommended that J.A. be detained at home with his parents so long as F.M. and Jose complied with several conditions, including refraining from domestic violence and physical discipline, participating in the services recommended by the Agency, and allowing third parties to check on the family. The court made a prima facie finding that the allegations in the dependency petition were true and adopted the Agency's recommendation to conditionally detain J.A. at home.
After the detention hearing, the family continued to struggle. On November 30, 2017, F.M. again called the police to the home after J.A. threatened her and threatened to injure himself with a large kitchen knife, at one point pressing the knife to his stomach. F.M. told police that when she tried to take the knife from J.A. he threw it to one of his siblings. J.A. also grabbed a bat and threatened to hit F.M. and the other children. Once the police arrived, J.A. was taken to the hospital and admitted for a psychiatric hold. The Agency conducted additional investigative interviews and F.M. told the social worker that J.A.'s behavior had been escalating for several days prior to the hospitalization. F.M. told the social worker that she ran out of the homeopathic treatment she had been giving J.A., and also asked the social worker if she could send J.A. to stay with a relative. The social worker reported that F.M. continued to be overwhelmed by J.A.'s behavior and caring for her other three young children.
The principal at J.A.'s school reported that the morning of J.A.'s hospitalization F.M. dropped J.A. off at school around 11:00 a.m. After he arrived, J.A. told the school staff that he was angry because F.M. had tied a belt over his feet and hands, and put tape on his mouth. J.A.'s younger sister and older brother confirmed that F.M. had tied J.A. to a chair the day before he was hospitalized and also recounted the episode with the knife and baseball bat. J.A.'s younger brother, who was just three, also described some details of F.M. tying J.A. to a chair. J.A.'s older brother told the family's social worker that F.M. had tied J.A. to a chair as part of a game. F.M. admitted she had tied J.A. to a chair, but denied the incident was abusive. She said it was a "dare" and J.A. "knew about it and he was ok with it."
The social worker also spoke with an intake therapist at the clinic where the Agency had referred the family. The therapist had seen J.A. and F.M. in the morning on the day he was hospitalized. F.M. had told the therapist about tying J.A. to a chair, explaining it was a game but also stating she had tied J.A. after he became angry while the family was watching a movie. The therapist reported that F.M. seemed exhausted, hopeless, and overwhelmed by J.A.'s behavior. J.A.'s school principal also reported that his behavior at school had declined further and he required constant supervision to be kept safe and to prevent him from harming other children and school property.
J.A. was discharged from the hospital on December 1, 2017 and taken into protective custody at Polinsky Children's Center (PCC). On December 5, 2017, the Agency filed an amended petition on J.A.'s behalf with an additional allegation under section 300, subdivision (c). The petition alleged that J.A. had a mental disorder that required treatment that his parents were unable to provide, and that he was at a substantial risk of suffering serious emotional damage as a result. The following day, the juvenile court made a prima facie finding that J.A. was described by section 300, subdivisions (a) and (c), and ordered J.A. detained out of his parents' care. The court found removal was necessary because of F.M.'s use of excessive physical discipline and J.A.'s behavior, and found reasonable efforts were made by the Agency to prevent the need for removal.
At PCC, J.A.'s behavior did not stabilize, and he continued to threaten to harm himself and others. On December 3, 2017, just two days after being placed at PCC, J.A. was hospitalized again after he broke a plastic box and threatened to kill himself with a piece of sharp plastic. The Agency received reports from PCC on a weekly basis about J.A.'s behavior that indicated he was out of control, destroying property, and needing to be restrained by staff. In one incident that occurred after a visit from his family on December 21, 2017, J.A. barricaded himself in a room, threatened to kill himself, and lifted a table onto his neck. J.A. consistently told the Agency's social workers that he wanted to go home.
J.A. was evaluated for medication in December, and began taking a psychotropic drug at the end of that month. In early December, his elementary school determined that it could no longer meet J.A.'s needs and recommended transferring him to another school that could provide more attention and that was better equipped to safely handle J.A.'s behavioral issues. J.A. was resistant, threatening to harm himself if forced to go, but he eventually agreed to attend the new school.
At the initial jurisdiction and disposition hearing on January 3, 2018, the Agency recommended placing J.A. in a group home and providing F.M. and Jose with reunification services, including parenting and child abuse group therapy, and liberal supervised visitation. F.M. and Jose opposed the recommendation and the court set the matter for an evidentiary hearing on February 21, 2018. F.M. challenged both the truth of the allegations in the petition and the Agency's disposition recommendation.
On January 17, 2018, J.A. was moved from PCC to a group home, San Diego Center for Children (SDCC). Once at SDCC, J.A.'s extreme behavior continued, though he did report that the medication was helping him feel better. Five reports of severe behavior were made by SDCC staff to the Agency in February and March in which J.A. made threats to harm himself and the staff had to physically restrain him. J.A. began participating in regular group therapy and individual therapy, though at times the SDCC staff could not get J.A. to participate in his individual sessions.
In the time between J.A.'s removal from his parents' home and the contested jurisdiction and disposition hearing, F.M. maintained contact with the Agency, visited J.A. regularly, and took steps to participate in the services recommended by the Agency. F.M. participated in a seven-week parenting course and began a 52-week child abuse group therapy program. The group therapy provider reported that F.M. demonstrated good participation and had an excellent attitude. The supervisors of F.M.'s visits with J.A. reported that the visits were positive. However, when the visitation included J.A.'s three siblings, F.M. had difficulty monitoring all four children.
On the date set for the contested jurisdiction and disposition hearing, February 21, 2018, the matter was continued to April 5, 2018 at the request of F.M.'s counsel after she received belated discovery from the Agency. At the beginning of the contested hearing on April 5, 2018, F.M.'s attorney clarified that F.M.'s primary challenge was to the Agency's disposition recommendation and that F.M. hoped to have J.A. returned to her care. The court received the Agency's reports and a program report from F.M.'s group therapy provider into evidence.
F.M. proffered a stipulated statement, which provided that if she were "called to testify she would state: I believe it is time for my son to come home. I have been regularly visiting him, two times a week. I can tell my child is much better. He is now on Adderral and Vistaral. He was not on these medications before. I see an improvement in his behavior. I have learned not to use corporal punishment. If [J.A.] was to have another behavioral outburst I would hold his arms down to his side. I have asked the staff at San Diego Center for Children everytime I visit, if [J.A.] has had any behavioral incidents. I was told of only 2. Once when he first went there and the second time when a child rearra[n]ged [J.A.]'s toys that he had arra[n]ged just the way he wanted them."
The family's social worker also testified. She indicated she was concerned with F.M.'s ability to handle all four children based on her observations of F.M. during supervised visitation and at a team meeting for the family on February 27, 2018. The social worker also recounted J.A.'s behavioral challenges in his placement at SDCC, and described a meeting she had with J.A. on March 28, 2018 during which J.A. lost control of his behavior, and began kicking chairs, throwing things in the room, and hitting his head against a wall. The social worker also expanded on her recommendation that J.A. not be returned to F.M.'s care at that juncture, explaining that while both parents were making progress already in their reunification efforts she did not think they were yet equipped to care for J.A., whose behavior was still very volatile. Based on her observation of the family during visits and the team meeting, the social worker feared that F.M. would revert to physical discipline if she were stressed by J.A.'s behavior.
After closing arguments, the court found by clear and convincing evidence that the allegations in the petition were true. With respect to section 300, subdivision (a), the court noted the evidence established F.M. used excessive physical discipline, and with respect to subdivision (c), the court called special attention to evidence of J.A.'s threats to his own life and his family members with a knife. The court then declared J.A. a dependent, found by clear and convincing evidence that removal of the minor from F.M. and Jose's care was appropriate under section 361, subdivisions (c)(1) and (c)(3), and continued J.A.'s placement at SDCC with discretion to the Agency to allow for unsupervised and overnight visitation with the concurrence of J.A.'s counsel. The court also specifically noted the intertwined relationship between the danger posed by J.A.'s behavioral issues and F.M.'s use of physical discipline, and agreed with the Agency that the risk of excessive discipline persisted in light of J.A.'s continued behavioral and mental health concerns.
DISCUSSION
On appeal, F.M. asserts insufficient evidence supported the juvenile court's findings (1) that removal of J.A. from her care was appropriate and (2) that the Agency made reasonable efforts to keep J.A. in her care. As the reviewing court, our role is limited. While we are sympathetic to F.M.'s circumstance, we conclude sufficient evidence supported the juvenile court's findings.
I
After the juvenile court makes a true finding at the jurisdictional phase of a dependency case, the court must then consider whether a minor should be declared a dependent and whether he or she would be at substantial risk of harm if not removed from the parent's care. (§§ 358, subd. (a), 360, 361; see In re Austin P. (2004) 118 Cal.App.4th 1124, 1129.) Here, the court removed physical custody of J.A. from F.M. and Jose under section 361, subdivisions (c)(1) and (c)(3). Subdivision (c)(1) provides for removal where there is 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" his parents' custody. (§ 361, subd. (c)(1).) Under subdivision (c)(3), removal is warranted where there is clear and convincing evidence the minor "is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian." (§ 361, subd. (c)(3).)
Section 361 also requires the juvenile court to determine "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).) "The adequacy of reunification plans and the reasonableness of [the welfare agency's] efforts are judged according to the circumstances of each case." (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) The juvenile court has broad discretion in crafting a disposition pursuant to a child's best interests. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus . . . is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.)
When the court removes a child from parental custody at disposition, the substantial evidence standard of review is used to determine whether the court's decision should be upheld. (In re T.V. (2013) 217 Cal.App.4th 126, 136.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) When a parent challenges an order on the grounds of insufficient evidence, the appellate court reviews the evidence in the light most favorable to the juvenile court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re D.M. (2012) 205 Cal.App.4th 283, 291.) The parent has the burden to demonstrate there is no evidence of a sufficiently substantial character to support the juvenile court's order. (Ibid.)
II
F.M. asserts there was no clear and convincing evidence before the juvenile court to support its findings that removal was required because she had enrolled in a parenting class and a child abuse treatment program, and she had "learned not to use corporal punishment and to control [J.A.]'s behavioral outbursts . . . ." She also points to the facts that the family's social worker testified F.M. had made progress in her reunification services, her three other children remained in her care, and J.A.'s behavior had stabilized on medication.
These facts, however, do not establish that insufficient evidence supported the juvenile court's findings. We commend F.M. for her commitment to obtaining the services she needs to manage J.A.'s health and development. However, as recently as March 7, 2018, just a few weeks before the hearing, J.A. was exhibiting the same extreme behaviors, including threatening his own life and violently lashing out at other people, that caused F.M. to use excessive physical discipline and which resulted in the need for protective custody. Further, the social worker had concerns about F.M.'s ability to handle the stress caused by J.A.'s behaviors based on her recent observations of F.M. when she had all four of her children in her care.
As the Agency points out in its response at the time of the hearing, F.M. was only beginning to learn nonviolent strategies to manage J.A.'s behavior. Although J.A.'s health was improving in SDCC, he was still exhibiting the dangerous behavior that caused F.M. to resort to unsafe methods of discipline—and which had contributed to J.A.'s deteriorating mental health prior to the dependency. The dangers that brought J.A. into the dependency system were not ameliorated by the time of the jurisdiction and disposition hearing, and J.A. still faced the risk of physical and emotional injury if he were placed at home. On this record, we cannot say that the evidence before the trial court was insufficient to support its findings that removal was warranted under section 361, subdivisions (c)(1) and (c)(3).
We are optimistic that F.M. and Jose will continue to gain the tools they need to address J.A.'s mental health and behavioral challenges, and that J.A. is getting the therapeutic care he needs at SDCC, which will allow for his safe return home.
III
F.M. also asserts there was insufficient evidence to support the juvenile court's finding that reasonable efforts were made to keep J.A. in her care. In support of this argument she relies on In re James T. (1987) 190 Cal.App.3d 58. There, the court of appeal concluded the juvenile court erred by finding 16-year-old James was at risk of harm if not removed from his mother's care. Unlike this case, in James T. there was no evidence that the problem that brought the family to the attention of the social services agency—James's conflicts with his mother and the mother's financial instability—resulted in any "extreme anxiety, depression, withdrawal, or untoward aggressive behavior" required by section 361. (James T., at p. 64.) Rather, the evidence showed only that the teenager "expressed the doubts, dissatisfaction, and confusion [about his parents] echoed universally by adolescents." (Id. at p. 65.) Further, and to the point, the record showed "no attempts had been made to assist family unification." (Ibid., italics added.)
The complete absence of assistance in James T. is a far cry from the ongoing efforts undertaken by the Agency to support F.M. and her family. Those efforts included significant voluntary services and safety planning before the dependency petition was filed, and maintaining J.A. in the family's home while additional services were initiated after the petition was filed and until his hospitalization for suicidal ideation. In sum, the evidence sufficiently supported the juvenile court's finding that the Agency's efforts to prevent removal were significant and reasonable in light of the very extreme behavioral issues J.A. faced. (See In re Misako R. (1991) 2 Cal.App.4th 538, 547 ["The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances."].)
F.M. also relies on In re Jeanette S. (1979) 94 Cal.App.3d 52 to support her assertion the Agency could have undertaken additional efforts to prevent removal. This reliance is misplaced. Jeanette S. reversed a dispositional order removing the minor from her mother's home and denying the father's request for placement in his separate home, where removal was based on the mother's dirty home. The social services agency had provided the mother with some limited assistance for just two weeks prior to removing the five-year-old minor, even though it had been aware of the problem for a year and a half. Further, the agency failed entirely to consider placement with the father. (Id. at pp. 60-61.)
DISPOSITION
The judgment is affirmed.
/s/_________
IRION, J. WE CONCUR: /s/_________
O'ROURKE, Acting P. J. /s/_________
GUERRERO, J.