Opinion
D076505
02-19-2020
In re J.P. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.P., Defendant and Appellant.
Richard L. Knight, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EJ4410A-C) APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Richard L. Knight, 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.
R.P. (Mother) appeals from the juvenile court's disposition order removing her five-year old son, J.P. Mother contends substantial evidence does not support the court's findings that there would be substantial danger to J.P. if not removed from her custody. She also claims the court erred in failing to consider less drastic measures before removing the child and by failing to make required findings. Alternatively, she asserts the court abused its discretion when it denied her request for unsupervised visitation. We find no error and affirm the disposition order.
FACTUAL AND PROCEDURAL BACKGROUND
Family friends adopted Mother at age five. Her adoptive mother disciplined her " 'southern style' " with extension cords and wire hangers. Mother married K.P. (Father) in 2013. The couple experienced difficulty early in their marriage with Father verbally abusing Mother. The couple worked with Military Family Advocacy and a Chaplain to improve their relationship. Mother claims they overcame the difficulty and "have a very good marriage." Mother gave birth to J.P. in 2014 and two male siblings in 2017 and 2019 (collectively, the children).
In early June 2019, a child abuse hotline received a referral alleging that Mother had confined J.P. to the garage as punishment for waking up his younger brother and " 'whooped' " J.P. for smirking at her. At the time, Father was deployed until December. During a child welfare check that afternoon, law enforcement found J.P. in the garage. J.P. told officers that he ate breakfast and lunch in the garage and was given one bottle of water for the entire day. An officer described the temperature in the garage as "moderate and not extremely hot."
All undesignated date references are to 2019.
J.P. stated that his mom had punched his finger, head, and leg. He described receiving " 'a butt whoopin' " from his parents when he gets in trouble, stating Mother used a phone cord and Father used a cord from a phone charger. Mother repeatedly stated that J.P. was "malicious" and did "things to stress [her] out."
J.P. suffered a fractured finger. He also had bruising in multiple areas and abrasions on his abdomen that Mother could not explain. A child abuse expert examined J.P. and found "extensive patterned injuries" consistent with "a history of being struck multiple times on multiple parts of the body." The expert also noted that abdomen injuries in children were unusual and particularly indicative of inflicted trauma. The expert opined that confining J.P. to a hot garage for 10 or more hours, with only one bottle of water, was cruel and consistent with parental neglect.
The San Diego County Health and Human Services Agency (the Agency) obtained a warrant to remove the children from their parents' custody. It placed J.P. in a foster home and his younger siblings in Polinsky Children's Center (Polinsky). The Agency filed a dependency petition under Welfare and Institutions Code section 300, subdivision (a) for J.P. alleging excessive discipline with injuries, and petitions under subdivision (j) for his siblings alleging they were subject to suffering a similar risk as their older brother.
Undesignated statutory references are to the Welfare and Institutions Code.
At the detention hearing, the court found a prima facie showing had been made that the children were persons described by section 300 and ordered them detained at Polinsky or a licensed foster home with liberal supervised visitation for Mother. The court gave the Agency discretion to place the younger siblings with Mother finding that J.P. appeared to be "a particular targeted child." In July, the court ordered the two younger siblings detained with Mother on the condition that a relative remain living in her home with her and the children. In August, J.P. transitioned from a foster home into the approved relative home of his paternal cousins.
The court held the contested jurisdictional and dispositional hearing in late August. The court found true the allegation that a substantial risk existed that J.P. would suffer nonaccidental serious physical harm and that his siblings were subject to suffering a similar risk as their older brother. The court declared the children to be dependent children under section 360, subdivision (d). It removed custody of J.P. from the parents and placed him in a relative's home. The court ordered supervised visits with J.P. and gave the Agency discretion to allow unsupervised visitation. The court placed the younger siblings with their parents. Finally, the court ordered reunification services to both parents.
DISCUSSION
I. REMOVAL
Mother contends the juvenile court erred in removing J.P. without evidence of any current substantial clear and convincing evidence of future risk of excessive discipline or detriment. She also argues that the court erred in failing to consider less drastic measures before removing J.P. and by not making specific findings regarding what, if any, reasonable alternatives it considered before deciding to remove J.P. The Agency responds that Mother forfeited these issues. Alternatively, it argues that substantial evidence supports the juvenile court's disposition order. Mother responds that challenges to the sufficiency of evidence supporting an order or judgment are an exception to the rule that issues not raised in the trial court are generally forfeited.
"A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture . . . applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) "[T]he failure to object to a disposition order on a specific ground generally forfeits a parent's right to pursue that issue on appeal . . . ." (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345.) A parent in a contested dependency proceeding, however, "is not required to object to the agency's failure to carry its burden of proof." (In re Javier G. (2006) 137 Cal.App.4th 453, 464.) Rather, a " ' "contention that a judgment is not supported by substantial evidence . . . is an obvious exception to the [forfeiture] rule." ' " (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560; see In re R.V. (2012) 208 Cal.App.4th 837, 848 [parent's challenge to removal order "on the ground of insufficient evidence . . . is not forfeited even if not raised in the juvenile court"].)
Here, Mother's failure to ask the juvenile court to clarify its implied finding that there were no reasonable alternatives to removal or request specific findings regarding reasonable alternatives to removal forfeited these issues on appeal. Any deficiency in the Agency's reports or the juvenile court's findings regarding removal or reasonable alternatives to removal could have readily been cured by an objection from Mother. (In re E.A. (2012) 209 Cal.App.4th 787, 791 [Purported failure to make an express finding is the sort of "alleged defect that could have been easily cured, if raised in a timely fashion."].)
To the extent Mother challenges the juvenile court's order removing J.P. from her custody, the record shows that Mother never requested custody of J.P. The social worker noted in the jurisdiction/disposition report Mother's statement that she wanted to "transition" J.P. "back to a home where I feel like I can handle him and he can feel like he can be home and not under unnecessary pressure." The case plan attached to the July 10 jurisdiction/disposition report recommended supervised visitation with the children. Implicit in this recommendation was that Mother would not have custody of the children.
The subsequent addendum reports recommended supervised visitation with J.P. In a report dated the day of the jurisdictional and dispositional hearing, the Agency recommended that J.P.'s younger siblings be declared dependents, but returned home. As to J.P., the social worker specifically noted that Mother "stated that she is not asking for [J.P.] to return home yet but would like more time to practice the skills she is using." The Agency supported this and requested that Mother have more supervised time with J.P. "one-on-one" to help Mother "further practice the skills she is learning."
At the jurisdictional and dispositional hearing, the Agency requested that the younger siblings be placed with Mother and J.P. placed with a relative, noting that while Mother had made "great strides" in addressing protective issues, it wanted "to make sure that the transition to return [J.P.] home is handled with care, so [M]other and [J.P.] can both reunify successfully." Mother's counsel argued that Mother desired structured unsupervised visitation with J.P. in the community. Mother's counsel never argued against J.P.'s removal and placement with a relative.
Thus, while Mother preserved her right to challenge the sufficiency of the evidence supporting the removal order, she did not argue for J.P.'s return below. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 [arguments raised for the first time on appeal are deemed forfeited].) In any event, substantial evidence supported the court's removal order.
A dependent child may not be taken from the physical custody of his or her parents "unless the juvenile court finds clear and convincing evidence . . . [¶] . . . [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." (§ 361, subd. (c)(1).) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The [juvenile] court may consider a parent's past conduct as well as present circumstances." (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
A disposition order removing a child is reviewed for substantial evidence keeping in mind that the juvenile court was required to make its order based on a finding of clear and convincing evidence. (In re Noe F. (2013) 213 Cal.App.4th 358, 367.) In applying the substantial evidence standard of review, "our power begins and ends with a determination as to whether substantial evidence exists, contradicted or uncontradicted, supporting the dependency court's determinations. We review the evidence in the light most favorable to the dependency court's findings and draw all reasonable inferences in support of those findings. [Citations.] Thus, we do not consider whether there is evidence from which the dependency court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw." (Id. at p. 366.)
The Agency detained J.P. because of Mother's excessive discipline. A child abuse expert concluded that the "extensive patterned injuries" on J.P.'s body were consistent with "a history of being struck multiple times on multiple parts of the body." Mother repeatedly stated that J.P. is " 'malicious and does things to stress me out.' " Mother acknowledged early in the proceeding that she needed to change her parenting and discipline methods. To start this change, Mother participated in anger management classes, parenting classes, and engaged in individual therapy.
Although Mother eventually had J.P.'s two younger siblings returned to her custody, their return was conditioned on a relative living in her home with her and the younger siblings. Accordingly, Mother had the paternal grandmother or another relative or friend assisting her with their care. The Agency expressed concern that without ongoing support Mother "will again become overwhelmed and not have the coping skills to make safe choices for her children. The Agency believes it will take some time to have [Mother's] default discipline to be a safe method, free of marks or bruises."
J.P. was diagnosed with an adjustment disorder, with mixed disturbance of emotions and conduct. J.P. also displayed some "anger and defiant behaviors" in his relative placement. Mother agreed that J.P. needed more than eight weeks of therapy " 'to be able to unpack the trauma of everything.' " Critically, Mother has not yet started child abuse group treatment. The social worker noted that "[w]hile [Mother] appears to be changing her thoughts on what is appropriate discipline, she continues to rely on others to help her see another perspective. The Agency appreciates this as a step towards helping [Mother] parent successfully in the future, however, in an effort to set [Mother] up for success, the Agency believes it is imperative to not move too quickly and for these parenting changes to be demonstrated over time."
Mother's articulate statements to the social worker show her motivation to change and how she has changed her parenting. The juvenile court commented that Mother was "doing a great job." We concur and commend Mother's efforts to address her excess discipline of J.P. and become a better parent. However, at the time of the disposition hearing Mother had yet to parent J.P.'s younger siblings without help from a relative. The juvenile court could have reasonably concluded that Mother had not had enough time engaging her new parenting skills to demonstrate they had become not only a permanent part of her parenting repertoire, but also had replaced violence, solitary confinement, and other abuse as disciplinary measures. Based on the totality of the evidence, the juvenile court reasonably found that Mother's conduct posed a substantial continuing risk of harm to J.P. and that such risk could only be obviated by removing him from Mother's custody.
II. VISITATION
Mother notes that the juvenile court denied her request for unsupervised visits with J.P. without explanation, but gave the Agency discretion to allow unsupervised visitation and overnights with either parents. She claims that the court abused its discretion because unsupervised visits between her and J.P. would not have jeopardized his safety. The Agency contends that Mother failed to show that the court abused its discretion by maintaining Mother on supervised visitation with J.P.
The Agency also argues that Mother failed to demonstrate that the court's visitation order amounted to an unlawful delegation of judicial authority. Mother did not argue this issue in her opening brief; accordingly, the issue is forfeited. (In re Daniel M. (2003) 110 Cal.App.4th 703, 707, fn. 4 [appellate review of issue forfeited if not raised in opening brief].)
To promote reunification, visitation must be as frequent as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A); In re Alvin R. (2003) 108 Cal.App.4th 962, 972.) "While visitation is a key element of reunification, the court must focus on the best interests of the child[] 'and on the elimination of conditions which led to the juvenile court's finding that the child has suffered, or is at risk of suffering, harm specified in section 300.' " (In re Julie M. (1999) 69 Cal.App.4th 41, 50.) "[T]he court must define the rights of the parties to visitation. The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child. In balancing these interests, the court in the exercise of its judicial discretion should determine whether there should be any right to visitation and, if so, the frequency and length of visitation. The court may, of course, impose any other conditions or requirements to further define the right to visitation in light of the particular circumstances of the case before it." (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
Asserting that a disposition order restricting visits is governed by the same statutory standard applicable to an order denying visitation, Mother contends the juvenile court abused its discretion in denying unsupervised visitation because such an order would not have threaten J.P.'s physical safety or emotional well-being. (See In re C.C. (2009) 172 Cal.App.4th 1481, 1491 [when reunification services are being provided some visitation is mandatory unless court specifically finds any visitation with parent pose a threat to the child's safety]; In re T.M. (2016) 4 Cal.App.5th 1214, 1219 [court could deny visitation based on potential harm to minor's emotional well-being]. We decline Mother's invitation to apply these standards to an order maintaining supervised visitation.
We review a visitation order for an abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The test is whether any rational trier of fact could conclude that the visitation order advanced the child's best interests. (Ibid.) To find an abuse of discretion, a reviewing court would have to conclude that the court's ruling exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
The juvenile court was entitled to credit the opinions of the Agency's social workers, who had direct contact with the relevant parties in this case as well as experience in determining the risks associated with placing dependent children. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1427 ["Social workers are frequently recognized as experts in assessing risk and placement of children and selecting permanent plans for children."].) Here, the social worker supported Mother's desire to spend more time practicing her parenting skills with J.P., but could not "recommend that [Mother] be alone with any of the children overnight without support" and requested that Mother "have more supervised time with [J.P.] one-on-one, which has already begun and to continue to have discretion to allow unsupervised time to help [Mother] further practice the skills she is learning."
Although Mother had positive interaction with J.P. during visits and J.P. wanted to return home, the court could reasonably conclude her visitation should remain supervised until she has had time to practice her new parenting skills on J.P. and exhibited the ability to parent J.P. without using excess discipline. The court's order maintaining supervised visitation was consistent with J.P.'s best interests and did not amount to an abuse of discretion.
DISPOSITION
The disposition order is affirmed.
O'ROURKE, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.