Opinion
D078206
03-11-2021
In re A.T., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.B., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Caitlin Rae, Chief Deputy County Counsel, and Tahra Broderson, Senior 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J520183) APPEAL from an order of the Superior Court of San Diego County, Rohanee Zapanta, Judge. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Caitlin Rae, Chief Deputy County Counsel, and Tahra Broderson, Senior Deputy County Counsel for Plaintiff and Respondent.
J.B. (Mother) appeals from a juvenile court order removing her minor daughter, A.T., from her custody. She contends there is no substantial evidence to support removal. The San Diego County Health and Human Services Agency (Agency) maintains removal was appropriate and supported by the record. We agree, and affirm.
A.T.'s father and her younger sister, N.B., are not parties here. We discuss them to the extent necessary.
I.
PROCEDURAL AND FACTUAL BACKGROUND
A. Voluntary Case
A.T. began having mental health and behavioral issues in early 2019, after her father was incarcerated for voluntary manslaughter. She was nine years old at the time.
A.T. was hospitalized under a section 5150 hold four times in February and March 2019. During the incidents leading to the section 5150 holds, A.T. threatened to kill herself and hurt others, and engaged in physical altercations with Mother, resulting in injuries to both of them. A.T. was diagnosed with depression and anxiety, and prescribed psychotropic medication. The Agency gave Mother referrals, including to Therapeutic Behavioral Services (TBS).
Section 5150 allows for detention and evaluation of a person who is a danger to himself or others. (See In re Luke H. (2013) 221 Cal.App.4th 1082, 1085, fn. 4.)
The Agency opened a voluntary case in March 2019, and placed A.T. in foster care until May 2019. Mother did not consistently respond to service providers, leading to cancellation of some services, and declined TBS. She did not take A.T. to therapy because it was "too far," and stopped giving A.T. medication for months, reportedly to see if her behavior would change. After Mother refilled A.T.'s prescription, she would sometimes forget to give it to A.T. The altercations continued. B. Dependency Case
The situation escalated in October 2019, when A.T. received deep, red marks on her wrist and back in another fight with Mother. The Agency filed a petition under Welfare and Institutions Code section 300, subdivision (c), on the grounds that A.T. was at risk of suffering serious emotional damage.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
According to the Agency's detention report, Mother "admitted not knowing what to do with [A.T.'s] behavior . . . ." School staff reported A.T. was never aggressive, but had stolen things and lied about it. The Agency was concerned that Mother was "unable or unwilling" to meet A.T.'s needs and the "risk for serious harm or death" was high. The juvenile court detained A.T., and she was placed at Polinsky Children's Center (PCC).
Social worker Cristina Gil de Montes prepared the jurisdiction and disposition report in December 2019. After she had to try repeatedly to reach Mother, Mother said that her phone had died. Mother also addressed TBS, explaining she had "play[ed] phone tag" with them and had A.T.'s sister N.B. "to take care of too." While discussing visitation, Mother acknowledged she had bus passes, but said it takes "three times longer to get anywhere." Mother reported she had depression and anxiety, and prescriptions for psychotropic medications. C. Placement at PCC
The Agency's addendum reports addressed their placement efforts. They contacted the grandparents, the maternal uncle, school staff members, and a family friend, but none could care for A.T. They also looked for a foster home, and A.T. had visits with a possible home in December 2019.
At PCC, A.T. began seeing therapist Ember Price, was taking medicine, and was doing well, but made multiple attempts to run away. Although housed at PCC, A.T. was still attending her home school.
By late January 2020, A.T. was seeing Price and a psychiatrist regularly. She was not aggressive, but had "endorsed some passive [suicidal ideation] and [self-injurious behavior]." She also started missing school. In February 2020, A.T. started treatment with TBS, in which she met with a coach and case manager to improve her coping skills.
At a status conference in March 2020, Mother's counsel reported A.T. was miserable at PCC. The juvenile court noted there were few foster homes available, and the court and counsel discussed A.T. leaving her home school if it allowed for placement. D. Placement in Foster Home
In March 2020, the Agency was able to place A.T. in a foster home in National City. The parents spoke only Spanish, and their adult daughter translated. While in that foster home, A.T. began seeing TERM therapist Judy Matthews by telehealth in May 2020.
In June 2020, A.T. attended her fifth grade promotion, and graduated from TBS. After not speaking with Mother for a couple of weeks, A.T. asked social worker Gil de Montes about visits. Gil de Montes said she had trouble reaching Mother, and A.T. said she was "pretty sure" Mother had blocked her. The foster adult daughter reported A.T. started having behavioral issues after TBS ended and contact with Mother diminished. She later reported more concerns, including that A.T. was stealing and lying. Therapist Matthews noted virtual sessions were difficult and the family distracted A.T. during the sessions.
In August 2020, the foster family asked the Agency to find a new placement for A.T.; she was unhappy too, and returned to PCC. Gil de Montes located another foster home, but it was not suitable for A.T. E. Contested Adjudication and Disposition Hearing
The Agency's addendum reports also addressed Mother's progress. She had started psychiatry visits for medication management, but was not in therapy, and a parenting services referral was closed when Mother did not respond. At one point, Mother again failed to respond to efforts by social worker Gil de Montes to reach her. When she did respond, she claimed A.T. had counseling and medication before the Agency was involved, and, if anything, the Agency was causing problems. Mother also would not disclose her current home address to the social worker.
The juvenile court held the contested adjudication and disposition hearing in September 2020. Gil de Montes, Mother, and A.T. testified.
Gil de Montes, the social worker, explained it was difficult to place A.T. due to her age, behavior, and the limited number of foster homes. She acknowledged it could take time to find another foster home, but still recommended out-of-home placement for A.T. She noted Mother began medication management only recently, had concerns about her stability, and wanted to see "more consistency" to be sure A.T.'s needs would be met.
Mother testified that since detention, A.T. was more withdrawn, but was also "happier" and "more . . . aware of her emotions." As for herself, she was seeing her psychiatrist, was back on medication, and would "get on" therapy. She had also enrolled in a parenting program, researched how to handle meltdowns and coping skills, and planned to use a "chill pill" book and "mommy-and-me" activities to manage A.T.'s behavior.
A.T. provided written testimony, which her counsel read. A.T. reported communication with Mother had gotten better, and while she did not know if things would be different this time, she wanted to go home.
The juvenile court found by clear and convincing evidence that A.T. was a dependent child and out-of-home placement was appropriate. The court recognized Mother had a "significant change of insight," started psychiatric services and medication management, and researched self-help. However, the court found A.T. lacked "the stability . . . needed based on her condition," noting the one person who "carried through" to help her "alleviate that risk" was PCC therapist Price. The court then turned to the possibility of A.T. returning home, and stated "there just isn't evidence there that there's stability . . . ." Elaborating, the court queried whether Mother was going to have therapy, to be able to "process . . . her role" and "identify . . . her issues" in "taking a proactive approach in understanding and dealing with [A.T.'s] condition and also her own." In its written order, the court also found reasonable efforts were made to avoid removal. Mother appealed.
II.
DISCUSSION
A. Applicable Law
Section 361, subdivision (c), provides in pertinent part: "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 of any of the following circumstances . . . : [¶] (1) There 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).) The court also "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" and "state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).)
We review the court's removal order for substantial evidence, bearing in mind the heightened clear and convincing evidence standard of proof. (In re Kristen H. (1996) 46 Cal.App.4th 1635, 1657; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996 (O.B.).) When that standard applies, the question before the appellate court is "whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true." (O.B., supra, at p. 1011.) "In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (O.B., supra, at pp. 1011-1012.) B. Analysis
1. Substantial Evidence Supports Removal
As an initial matter, the court made its jurisdictional findings by clear and convincing evidence, impliedly determining Mother's conduct posed a substantial risk of serious emotional harm to A.T. (§ 300, subd. (c).) Mother does not appeal these findings, and they support removal. (See In re Cole C. (2009) 174 Cal.App.4th 900, 917 ["The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home"]; see John M. (2012) 212 Cal.App.4th 1117, 1126 (John M.) [focus of removal statute is on "averting harm to the child"].)
While not contesting the jurisdictional findings in this appeal, Mother nevertheless disputes whether substantial evidence supports the juvenile court's removal order. (§ 361, subd. (c).) We conclude that under the applicable standard of review, substantial evidence supports removal. After A.T.'s father was incarcerated, her mental health deteriorated, resulting in four section 5150 holds, other physical altercations with Mother, and injuries to both. Mother was unable to manage A.T.'s condition, as evidenced by her failure to take her to therapy, consistently give her medicine, or respond to service providers, and Mother did not show meaningful progress in her ability to care for A.T. (Cf. John M., supra, 212 Cal.App.4th at pp. 1126-1127 ["nothing in mother's situation had changed to suggest that [issues] would not continue in the future"].) Mother's interactions with the social worker, including making excuses for not being responsive, complaining about public transportation, and assigning blame to the Agency, underscored her failure to take responsibility for A.T.'s care. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge"].) Mother also did not show she could manage her own mental health and stability, which limited her capacity to support A.T. Even accounting for improved insight, Mother had only recently started medication management, and was not in therapy.
Finally, the record reflects reasonable efforts were made to avoid removal, including the Agency's TBS referral in early 2019 and the voluntary case from March to October 2019. (§ 361, subd. (e).)
Considering the entire record and heightened standard of proof, as we must, we determine a reasonable factfinder could have found removal was necessary. (See O.B., supra, 9 Cal.5th at pp. 995-996, 1011.) We conclude substantial evidence supports the juvenile court's removal order.
2. Mother's Arguments Lack Merit
Mother's central premise is that removal was unnecessary because the Agency's efforts following detention were inadequate and ineffective, and she speculates she could have done "as good a job" with A.T.'s care. Mother also claims her situation had improved and that there were alternatives to removal. We are not persuaded. Section 361, subdivision (c), turns on the risk of danger from continued placement of the child in parental custody, not from the adequacy of Agency efforts after detention, and the record does not support Mother's arguments, regardless.
The cases cited by Mother do not show the Agency's post-detention efforts are at issue; they either do not involve removal orders, or are inapposite. (See, e.g., In re Jennifer P. (1995) 174 Cal.App.3d 322, 323-324 [addressing jurisdictional order]; In re Noe F. (2013) 213 Cal.App.4th 358, 367 [reversing removal order because parent identified suitable caregivers].)
First, Mother contends A.T.'s "behaviors in Agency care . . . were precisely similar" to those in her care, so the conclusion that she "represented some detriment" to A.T. is unfounded. However, as noted above, Mother did not challenge the jurisdictional findings, and cannot now dispute she poses a risk of serious harm to A.T. The record also does not support Mother's contention that A.T.'s behavior remained the same after detention. Mother focuses on the negative behaviors of A.T. that persisted, such as the child stealing and lying. She ignores what improved: A.T. was no longer actively threatening herself and others, or engaging in physical altercations with Mother. Mother also testified A.T. was happier and more aware of her emotions.
Second, Mother argues the Agency's placements "failed" A.T., questioning the time she spent at PCC and the effectiveness of the foster family. The Agency's post-detention efforts are not at issue under the statute, but even if they were, the record reflects they were reasonable. While the long placement at PCC was not ideal, there is evidence the Agency was trying to place A.T. elsewhere, including by contacting relatives and investigating foster homes. Perhaps the Agency could have done more, but the social worker testified A.T. was difficult to place, due to her age and other factors. As for the foster family, Mother states they were ineffective at letting A.T. "communicate with [Mother], attend a school [she] was familiar with[,] or facilitat[ing] therapy." The record shows the foster adult daughter assisted with communication; A.T. was attending her home school by remote learning, consistent with the pandemic; and A.T. was attending virtual therapy.
Mother cites the foster adult daughter's input to claim A.T.'s behavior escalated once contact with her was reduced. The daughter reported A.T.'s behavior worsened after TBS ended and contact with Mother waned; either way, this would not imply she would do better in Mother's care. In addition, Mother cites A.T.'s trial counsel's arguments in addressing the Agency's efforts and other issues. Such arguments are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.)
Third, Mother also criticizes the Agency's services to A.T. in foster care, claiming they were "ineffective and no better" than what Mother provided. In support, she cites the break in therapy when A.T. stopped seeing Price at PCC in March 2020 and started with Matthews in foster care in May 2020, and the limited meetings with Matthews. Again, the Agency's efforts are not at issue under the statute, and the record does not support Mother's argument. Certainly, it would have been better to avoid breaks in therapy, but the Agency was balancing multiple issues—including finding a placement for A.T. outside of PCC. Further, A.T. had already benefitted from her work with Price, as the juvenile court recognized; completed TBS; and was on a consistent medication regime. In contrast, Mother failed to take A.T. to therapy, did not take advantage of TBS, and chose not to give A.T. prescribed psychotropic medicine or forgot to do so at times. Mother also contends the Agency failed to provide stable schooling. While A.T. had school attendance issues in detention, she was still able to achieve academic success, as shown by her promotion from fifth grade.
Fourth, Mother contends she "was in a better spot" by the contested hearing in September 2020, citing her psychiatry visits and medication regimen, self-help efforts, and increased visitation, as well as the court's finding that she had a "significant change of insight" and A.T.'s hearing testimony. Mother's efforts are commendable, and A.T. may desire to return home, but this does not establish a lack of substantial evidence for the juvenile court's removal order. Rather, as the court found and the record reflects, Mother did not yet show she grasped her role in understanding and managing A.T.'s mental health condition, or her own, and that she could be proactive in doing so.
Finally, Mother maintains alternatives to removal were available, including "unannounced visits by [the] Agency, public health nursing services, in-home counseling services or a myriad of other services . . . ." She cites no evidence for this argument, and the cases she relies upon involve episodes of physical abuse, not on-going mental health management, and are otherwise distinguishable. (See In re Henry V. (2004) 119 Cal.App.4th 522, 529-531 [reversing removal order where child was removed for single, serious incident of physical abuse; social worker testified about in-home services that could mitigate risk of further physical abuse, including unannounced visits, public health nursing services, and in-home counseling, and mother was "fully cooperative"]; In re Ashly F. (2014) 225 Cal.App.4th 803, 809-810 [after physical abuse by mother, agency perfunctorily addressed efforts to avoid removal and did not consider alternatives noted in Henry V. or removing mother].) Further, there is evidence the alternatives proposed by Mother would not work. They turn on social workers or service providers having access to the home, or at least to the parent, and Mother has not always kept the social worker aware of her residence or maintained consistent communication with the Agency and service providers.
See also In re Hailey T. (2012) 212 Cal.App.4th 139, 148 (no substantial evidence for removal of older sibling, where infant experienced nonaccidental injury, but the parents had no history of violence and engaged in services; noting Henry V. alternatives); In re Jasmine G. (2000) 82 Cal.App.4th 282, 293 (reversing removal order, where parents expressed remorse about corporal punishment on teenage daughter, they participated in services, and one therapist opined it was "totally safe" for her to return).
We conclude the juvenile court did not err in removing A.T. from Mother's custody.
III.
DISPOSITION
The order is affirmed.
IRION, J. WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.