Opinion
D076205
12-16-2019
In re E.B. et. al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ISABEL S., Defendant and Appellant.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SJ13277A-B) APPEAL from orders of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
Isabel S. appeals the removal of her minor children, E.T.B. and E.B, from her care. She asserts insufficient evidence supports the juvenile court's finding that she could not protect the minors if they were left in her care and that the court failed to consider reasonable alternatives to removal. We reject Isabel's assertions and affirm the juvenile court orders.
FACTUAL AND PROCEDURAL BACKGROUND
Isabel and the minors' father, Eric B., were married in 2005 and had their first child, E.T.B, in 2011. E.B.'s birth followed a year and a half later. The family's involvement with the San Diego County Health and Human Services Agency (Agency) began in 2014, when the minors were two years and 11 months old. At that time, Isabel and Eric were involved in a serious domestic violence incident in which Eric was intoxicated and attacked Isabel in front of the minors. Eric strangled Isabel and accidently struck the 11-month-old. Eric was arrested, and Isabel obtained a restraining order against him. After the Agency learned of the altercation, it provided the family with a voluntary services case for six months. Isabel reported to the Agency that Eric had been violent with her once when she was pregnant with their first child and that Eric was a "functioning alcoholic." She also reported that Eric had been reluctant to become a parent and refused to give up his partying lifestyle after the minors were born.
The following year, after the voluntary case was closed and the restraining order vacated by Isabel, the Agency received another referral alleging violence in the home that again put one of the minors in direct danger. The Agency could not substantiate the allegations, but also could not conclude they were unfounded. Then, on Christmas Eve 2015, Isabel reported that Eric again became violent with her during an argument after Eric had passed out from drinking at a movie theater. In January 2016, Isabel obtained another restraining order against Eric and initiated divorce proceedings. In April 2016, the Agency received a report of additional domestic violence after Eric was arrested for violating the restraining order. Isabel called the police after another violent altercation between the couple during which the minors were left unsupervised in a bathtub.
As a result of this incident, Isabel entered into a safety plan with the Agency agreeing to follow the restraining order and not leave the minors in Eric's care unsupervised. However, the following month Isabel vacated the restraining order and stopped the divorce proceedings. After investigating the matter and learning that the couple had resumed their relationship, on June 29, 2016, the Agency filed petitions on behalf of the minors under Welfare and Institutions Code section 300, subdivision (b)(1) alleging the minors were at risk of harm because of a pattern of domestic violence. At the detention hearing the following day, the court detained the children out of the family's home and ordered separate supervised visits for Isabel and Eric.
Further undesignated statutory references are to the Welfare and Institutions Code.
In its report for the jurisdiction and disposition hearing, the Agency noted that the minors, then three and four years old, were placed with their maternal grandmother and were doing well. Eric admitted to the family's social worker that he had abused alcohol in the past, particularly in 2014, but said that he had been sober since June 24, 2016. Eric told the social worker he was receiving substance abuse treatment through his health care provider, seeing a therapist, and attending Alcoholics Anonymous (AA) meetings. Isabel agreed she would move out of the family's house and live with the minors in her parents' home. At the jurisdiction and disposition hearing, the court made true findings on the petitions and took jurisdiction over the minors. The court placed the minors in Isabel's care on the condition that she reside with the maternal grandmother and that she not have any face to face contact with Eric in the presence of the minors. The court ordered family maintenance services for Isabel, reunification services for Eric, and set a review hearing for February 2017.
In its initial report for the review hearing, the Agency indicated the minors were doing well with Isabel in the maternal grandparents' home. Isabel was excelling in her case plan, fully participating in services, and gaining insight into the protective issue that brought the family into the dependency system. Isabel, however, remained hopeful that she and Eric could eventually resume their relationship. Isabel reported that she and Eric had taken a small vacation to Mexico together and that Eric had consumed alcohol on the trip. Eric was living alone in the family's home and also participating in services, but he had not been as diligent as Isabel in his reunification efforts and failed to fully comply with the drug testing requirements of his case plan. The family's social worker wanted Eric to commit more fully to substance abuse treatment and was concerned that he was not honest about his sobriety because he denied drinking while on the trip to Mexico with Isabel. The Agency recommended the family continue to receive services for another six months.
Before the review hearing, Isabel was diagnosed with breast cancer and requested to waive components of her case plan, including additional domestic violence education, in order to focus on her medical care. The Agency was unwilling to waive the domestic violence component, but offered to support Isabel in obtaining services in a way that would not interfere with her cancer treatment. For the review hearing, the Agency continued to recommend reunification services for Eric, and additional family maintenance services for Isabel. At the April 5, 2017 hearing, the court found that continued jurisdiction over the minors was appropriate and agreed with the Agency's recommendation for continued services. The court set another review hearing for October 2017.
During the next review period, Isabel and the minors continued to reside with the maternal grandparents. Isabel underwent a mastectomy in September 2017, and she and Eric were seeing each other regularly. Eric had not completed the services recommended by the Agency and had tested positive for alcohol early in the review period. Isabel told the family's social worker that Eric was working long hours to cover the cost of her medical treatments, which prevented him from fully participating in services. Both parents believed the case should be closed and their family reunited. The family's social worker did not agree and recommended that the parents continue to receive services for another six months.
In October, before the next hearing, Eric increased his engagement in services. He entered an out-patient treatment program for substance abuse, attended weekly AA or Narcotics Anonymous meetings, and reentered domestic violence group therapy. In early December, Isabel contacted the family's social worker and reported that Eric had relapsed around Thanksgiving, but by the middle of January had regained his sobriety and was again engaging in services. In an addendum report submitted on the same day as the January 17, 2018 review hearing, the social worker recommended that Eric be permitted unsupervised visitation with the minors. The court adopted the recommendation and scheduled a further review hearing for July 2018.
In the next review period, Eric continued to progress in his services. He attended domestic violence classes and completed substance abuse treatment. Eric visited the minors regularly at his parents' home and in July 2018, took the minors to a baseball game on his own. Isabel was in remission from her cancer diagnosis and had returned to work. She also began leading a support group for breast cancer patients. The Agency reported that she had gained insight into her relationship with Eric and had demonstrated protective behavior towards the minors. At a family team meeting in July 2018, the family agreed to a safety plan to prevent Agency involvement in the future and the Agency recommended termination of the juvenile court's jurisdiction at the review hearing. At the review hearing, the minors' counsel set the matter for trial, asserting its position that services should continue for the family.
In its addendum report for the contested hearing, the Agency reported that Isabel and the minors had moved back into the family home and Eric had moved in with his parents. Eric continued to participate in services and despite not completing all of the domestic violence group sessions required by his case plan, the group facilitator approved him to begin conjoint therapy with Isabel. The family's social worker also supported conjoint therapy for the couple, who were together regularly outside the minors' presence. At the contested review hearing, the court continued the minors' placement with Isabel and authorized Eric to pick up the minors from school and bring them home when Isabel was working. The court also authorized family visits and set an interim review hearing in three months.
By the interim hearing, Eric and Isabel were participating in conjoint therapy and their therapist reported it was going well. Eric was helping with family responsibilities in the afternoons, then leaving for his parents' home when Isabel got home from work. Before the hearing, Eric and Isabel sought approval for Eric to begin overnight visits in the family home, but the Agency denied the request because Eric had not completed on-demand drug testing. At the December 10, 2018 interim hearing, Eric and Isabel requested the court's approval for overnight visits and the matter was continued to February. Eric moved into the family home in early February with the Agency's approval and the case was continued again for the Agency to get updated information from Eric's substance abuse therapist.
Just before the continued review hearing, the Agency's social worker made contact with Eric's substance abuse therapist. The therapist reported that Eric was attending therapy regularly but that he had relapsed and was drinking again. As a result, the Agency again obtained a continuance to May 2019, to investigate the allegation. Before the continued hearing, however, Eric was arrested for domestic violence. The morning of the arrest, the couple left the minors in the care of the paternal grandparents for the day. The couple went to brunch, where Eric drank heavily. When he and Isabel left the restaurant, Eric urinated on the side of a building in front of Isabel and they began arguing. The couple continued their argument in the car while driving on the freeway, and Isabel eventually pulled over because she was too upset to drive. Eric then assaulted Isabel, punching her with a closed fist multiple times. Isabel fled the car and ran down an embankment.
Isabel eventually came back to the car after a freeway service patrol tow truck stopped to see what was wrong. The tow truck driver called 911 and a California Highway Patrol officer arrived at the scene. Eric was arrested and Isabel was taken to a local hospital and treated for a head injury and laceration. Eric told the CHP officer and the Agency that Isabel had also been drinking heavily at brunch, which Isabel denied. The CHP officer's report stated that he did smell alcohol on Isabel's breath, but after a DUI investigation determined she was not intoxicated. After Eric was taken to jail, the officer obtained an emergency criminal protective order preventing Eric from contacting Isabel.
Eric posted bail in the early morning hours of the next day and returned to the family home. Isabel threatened to call the police and chased Eric away from the residence. Isabel reported the incident to the Agency. As a result, the Agency filed petitions under section 387 seeking removal of the minors from Isabel's care. In the petition and accompany report to the juvenile court, the family's social worker expressed concern that Isabel was not able to recognize Eric's primary trigger for domestic violence, drinking, and that she stayed with him while he became intoxicated at brunch. The court ordered the minors detained in the home of the maternal grandparents and Isabel was permitted unsupervised visitation. In her interview with the social worker just after the incident, Isabel said she did not intend to reconcile with Eric again and had taken steps to begin divorce proceedings. Eric also stated he did not want to continue his relationship with Isabel. The Agency recommended the minors be placed in the care of the maternal grandparents and reported that Isabel supported the placement if the minors could not be returned to her care.
Isabel reported the event to the police and told the officer who had arrested Eric the day before that when she first went for her phone to call the police, Eric grabbed her to prevent her from reaching her phone.
At the jurisdiction hearing on the section 387 petitions, the minors' counsel said E.B. had told her that Eric and Isabel had taken the minors to the mall together the night before. Because of the allegation, minors' counsel sought to restrict Isabel to supervised visitation. Isabel denied that she had seen Eric. The court declined to grant minors' counsel's request and set the matter for a contested hearing on July 1, 2019. At a status conference, Isabel requested that the civil restraining order she obtained after Eric's arrest be modified to allow positive contact with Eric. Counsel stated the modification was needed so Isabel could arrange logistics with Eric and to match the criminal protective order, which he stated had already been modified in the same way. The court agreed with counsel for the Agency and the minors, who both objected to the modification, and denied the request.
The contested hearing on the section 387 petitions took place on July 11, 2019. After opening statements, the court accepted the reports of the Agency into evidence. The social worker was available for cross-examination, but no party called her as a witness. In closing, the Agency's counsel recounted the violence perpetrated by Eric on Isabel, emphasizing the early incidents that endangered the minors and brought them into the court's protection. Agency's counsel asserted that removal and placement outside of Isabel's care was necessary because of the longstanding nature of the case and Isabel's inability to prevent the recent serious domestic violence despite years of intervention by the Agency. Agency's counsel also noted that Isabel remained with Eric despite the fact that he had relapsed and was again drinking regularly.
Isabel's attorney argued that placement with her was appropriate because Isabel had exhibited only protective behavior. He emphasized that the recent domestic violence had not occurred in the minors' presence, and noted Isabel kept Eric away from the home following his arrest. In her closing, minors' counsel recounted in great detail the history of physical violence by Eric in the minors' presence, Eric's alcohol abuse through the minors' lives, and Isabel repeatedly standing by Eric despite his dangerous behavior and significant domestic violence education.
After closing arguments, the juvenile court stated it believed that history was the best predictor of the future. The court believed that Eric would continue to drink and act violently toward Isabel, and that Isabel would continue to attempt to maintain a relationship with Eric. The court acknowledged that the minors were not present during the recent violence but found that because of the longstanding history of abuse it was likely future instances of violence would occur in their presence. The court adopted the Agency's recommendation to remove the minors from Isabel's care and agreed with the minors' counsel that supervised visitation for Isabel was appropriate in light of the seriousness of the recent violence. The court found the allegations in the section 387 petition true, removed the minors from parental custody, placed them with the maternal grandparents, and set 6- and 12-month review hearing dates. Isabel timely appealed.
DISCUSSION
I
Isabel first contends insufficient evidence supports the juvenile court's true finding on the petition. "A section 387 supplemental petition, like the ones filed here, is used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of court-ordered care. (§ 387; Cal. Rules of Court, rule 5.560(c).) A supplemental petition must contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child. (§ 387, subd. (b).)" (In re D.D. (2019) 32 Cal.App.5th 985, 989-990 (D.D.).)
Further undesignated rule references are to the California Rules of Court.
"The hearing on a supplemental petition is bifurcated. (Rule 5.565(e); In re Javier G. (2006) 137 Cal.App.4th 453, 460 (In re Javier G.).) The court first conducts an adjudicatory hearing at which it must find by a preponderance of the evidence that the factual allegations of the supplemental petition are or are not true, and that the allegation that the previous disposition has not been effective is or is not true. (Rule 5.565(e)(1); Evid. Code, § 115; In re Javier G., at pp. 460-461, 40 Cal.Rptr.3d 383.)" (D.D., supra, 32 Cal.App.5th at p. 990.) "If the court finds that the allegations of a supplemental petition are true, it [then] conducts a further dispositional hearing to determine whether there is a need to remove a child from his or her current level of placement. (Rule 5.565(e)(2); In re Javier G., at pp. 460-461.) The rules that govern an initial disposition hearing apply to a further dispositional hearing on a supplemental petition. (Rules 5.565(e)(2), 5.690-5.705.)" (D.D., at p. 990.)
"We review an order sustaining a section 387 petition for substantial evidence." (In re A.O. (2010) 185 Cal.App.4th 103, 109.) "Evidence is ' "[s]ubstantial" ' if it is ' " 'reasonable, credible, and of solid value.' " ' [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm the order even if other evidence supports a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order." (In re T.W. (2013) 214 Cal.App.4th 1154, 1161-1162 (T.W.).)
As Isabel notes, the juvenile court based its jurisdictional findings that the allegations of the section 387 were true and that the prior disposition of placing the minors in Isabel's care was not effective to ensure the minors' safety on three factors. Its belief (1) that Eric would continue drinking, (2) that Eric would abuse Isabel while under the influence of alcohol, and (3) that Isabel would resume her relationship with Eric and place the minors in harm's way. She contends the third factor is not supported by the evidence because after the juvenile court took jurisdiction over the minors, she excelled in her reunification efforts, never violated any court order, and provided excellent care to E.T.B. and E.B. Isabel also emphasizes that after Eric's recent arrest she obtained a restraining order against him and told the family's social worker she was done with him.
The facts highlighted by Isabel were before the juvenile court. However, those facts do not negate the additional, significant evidence showing Isabel had a history of resuming her relationship with Eric despite his continued alcohol abuse and violent outbursts. The record further shows that Isabel repeatedly acknowledged that drinking was the trigger for domestic violence between them, yet she prioritized her relationship with Eric and put herself in a situation where violence was likely to occur.
We commend Isabel for her reunification efforts especially while facing serious illness. However, despite significant intervention by the Agency for many years, at the time of the section 387 jurisdiction hearing the primary protective issue—domestic violence triggered by Eric's alcohol abuse—remained ongoing. With respect to her statements that she was done with Eric and that she intended to seek a permanent restraining order against him, those statements came within just days of Eric's assault and resulting arrest. As the juvenile court noted, Isabel had twice before obtained restraining orders against Eric only to lift them a short time later. Indeed, at a status conference before the jurisdiction and disposition hearing on the section 387 petition, Isabel sought to modify the most recent protective order to allow positive contact with Eric. Under the applicable standard of review, the evidence before the juvenile court was sufficient to support its findings that the allegations in the Agency's petitions were true and that the prior disposition had not been effective to protect the minors.
II
Isabel next asserts reversal of the removal order is necessary because the court failed to consider reasonable alternatives to removal. As noted, once true findings on the section 387 petition are made, the juvenile court "conducts a dispositional hearing to determine whether removing custody is appropriate." (T.W., supra, 214 Cal.App.4th at p. 1161, citing rule 5.565(e)(2).) "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. [Citations.] The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child." (T.W., at p. 1161.)
At the dispositional hearing after a section 387 petition has been filed, "the court applies the procedures and protections of section 361." (T.W., supra, 214 Cal.App.4th at p. 1163.) "Before a minor can be removed from the parent's custody, the court must find, by 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.' " (Ibid.)
Like the jurisdictional findings, we review the dispositional findings for substantial evidence. (T.W., supra, 214 Cal.App.4th, at p. 1161.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order. [Citation.] On a challenge to an order removing a dependent child from his or her parent, we 'view the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value.' [Citation.] We draw all reasonable inferences from the evidence to support the findings and orders of the dependency court." (In re Javier G., supra, 137 Cal.App.4th at pp. 462-463.)
Isabel argues that because she diligently followed the case plan throughout the years long dependency, there was no risk of harm to the minors if they were left in her care. Further, she points to the fact that the court adopted the Agency's recommendation of unsupervised visitation at the detention hearing on the section 387 petition just a few months before the contested jurisdiction and disposition hearing. The Agency responds that despite the relatively safe conditions the minors were in prior to the recent assault, Isabel's history of taking Eric back and Eric's recent alcohol abuse was evidence supporting the removal order. We agree with the Agency.
The juvenile court viewed the evidence before it as establishing a pattern that could not be broken. The court's statements at the hearing reveal it feared both for Isabel's and the minors' safety. The court viewed Eric, who failed to appear at the hearing, as a ticking time bomb. The evidence of domestic violence, ongoing alcohol abuse by Eric, and Isabel's history of prioritizing her relationship with Eric over the minors supported this view. Further, Isabel had primary care of the minors from early on in the proceeding and remained unable to protect herself from Eric's physically abusive behavior.
The dependency laws do not require harm to have befallen the minors in order for removal to be appropriate. Rather, "the focus of the [law] is on averting harm to the child." (In re F.S. (2016) 243 Cal.App.4th 799, 813; see also In re R.V. (2012) 208 Cal.App.4th 837 ["The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child."].) Additionally, a parent's past behavior is a good predictor of future conduct. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.) The juvenile court's determination that there was no reasonable alternative to removing the minors from Isabel's care was supported by the evidence of Eric's multiple acts of physical abuse while under the influence of alcohol and Isabel's pattern of reuniting with him.
Isabel ends her opening brief with a request for this court to override the juvenile court's decision to require her visitation be supervised. She provides no legal support for this request and we decline to interfere with the juvenile court's wide discretion to fashion appropriate visitation orders. (See In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095 ["Orders regarding visitation may be reversed only upon a clear showing of an abuse of discretion."].)
DISPOSITION
The orders are affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.