Opinion
C088428
01-13-2020
In re A.D. et al., Persons Coming Under the Juvenile Court Law. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.S. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JVSQ18320, JVSQ18321, JVSQ18322)
Father (L.) and mother (J.) appeal from the juvenile court's dispositional orders removing minors A.D., El., and Em. from their custody. (Welf. & Inst. Code, §§ 300, 395.) Mother contends no substantial evidence supports the dispositional order. Father challenges two of the four grounds on which the court exercised jurisdiction and joins in mother's challenge to the dispositional order. We affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The section 300 petitions
On June 19, 2018, Yolo County Health and Human Services Agency (the agency) filed petitions under section 300, subdivision (b), as to A.D. (14 years old), El. (10 years old), and Em. (six years old) alleging:
All dates are in 2018 unless otherwise stated.
"b-1: [T]he mother . . . has failed to protect the minors from exposure to domestic violence perpetrated by the father . . . . The children, [El.] and [Em.], disclosed the parents ' "slap and punch" ' each other. [El.] and [Em.] are afraid when the parents ' "fight." ' On June 8, 2018, the mother had a visible black eye and a large bruise [on her] left arm. The father explained the mother's bruises by stating that he has had to punch, hit, slap, and restrain the mother during night terrors[;] the mother reported that she does not remember when that occurs.
"b-2: The minors [had been exposed to] domestic violence perpetrated by the father . . . against the mother . . . . [The remainder duplicates b-1.]
"b-3: [T]he mother . . . has untreated mental health [issues] which impacts her ability to parent. [The mother] stated that she suffers from Post Traumatic Stress Disorder (PTSD) and participated in minimal treatment to address her mental health. The father . . . reported that the mother suffers from frequent night terrors in which she is screaming and threatens to kill herself, and the father responds by attempting to wake her up by punching, hitting, slapping, and restraining the mother during night terrors[;] the mother reported that she does not remember when that occurs.
"b-4: [T]he father . . . has mental health [issues] which impacts his ability to parent. On June 8, 2018, [the father] shared that he suffers from anxiety disorder and panic attacks and he was not willing to participate in services to address his mental health. On June 8, 2018, the father was observed to have significant mood swings where he was yelling, cursing, and stormed off, as he was unable to engage in safety planning."
The detention report
The agency recommended placing the minors temporarily with the paternal grandparents, G. and P. (on a visit from their home in Mississippi), and allowing the minors to go to Mississippi for a short vacation.
On June 8, the agency learned through a referral that, according to mother, father had told her she blacks out, sleepwalks, and threatens to kill herself on the train tracks, and he must physically restrain her. In the last one to two months, she had woken up with bruises three to five times. Father had punched her in the eye while she was awake. The reporting party said mother had a conspicuous hand-shaped bruise on her left upper arm. When father physically restrained mother, according to her, both were under the influence of alcohol, and she was also under the influence of Dramamine; they would drink nightly after the minors were asleep. The reporting party concluded both parents drank enough to compromise their memories, and there was no sober caregiver available then. The reporting party thought mother was in denial about abuse and was withholding information. Mother had declined the reporting party's offer for mother and the minors to go into a safe house.
The referral came from Dr. Jennifer McCoy, a psychiatrist mother had just seen for the first time.
Later on June 8, social workers Yang and Leyva went to the family home to investigate. Mother had a large bruise under her left arm, about which she claimed ignorance, and a bruise under her left eye that she supposedly got by falling off her bicycle; the social workers concluded mother was minimizing her injuries and lying about the bruise under her eye. Mother denied excessive drinking and domestic violence. Mother admitted father had told her she had tried to harm herself, especially when she screamed in her sleep, which she did once a week, normally after she drank. Father had told her she did not wake up when doing this. She would sometimes wake up later with bruises of unknown origin.
Mother claimed she drank only about once or twice a month, less than father. They sometimes drank when the children were present but in bed.
Mother stated she did not take medication for posttraumatic stress disorder (PTSD), but took an over-the-counter medicine to help her sleep. She had seen a psychiatrist for her condition that day for the first time since moving from Mississippi two years ago.
Mother also stated father could not be left alone because of his longstanding severe anxiety that sometimes led to panic attacks.
On the same date, Yang interviewed El. and Em., who demonstrated how the parents slapped and punched each other. El. was afraid someone might get hurt when the parents fought.
Father, who arrived during the interviews, was hostile and aggressive toward the social workers. He and mother told the minors: " 'Social Workers target the poor and just want to take children away.' " Em. was upset and cried in response to these comments.
Asked about the allegations, father responded: He and mother hit each other. Two weeks ago, when mother was having a night terror, he tried to wake her and she did not respond, so he " 'hit her with the belt on the leg, punched her, pinched her, and slapped her on the body,' " all without waking her. Around 1:00 a.m., he woke the minors to let them observe her condition, and they unsuccessfully tried to wake her. (The minors did not corroborate this story.)
When Yang expressed concern about domestic violence in the home, father said verbal arguments were " 'a normal part of everyday life,' " but now claimed he had not hit mother. Told that the younger minors had described violence between the parents, father replied that the agency had " 'coached' " the minors.
Father said the parents drank occasionally (only beer and wine, and only on weekends).
When the social workers said a safety plan was needed and asked father to leave the home for the weekend, he profanely refused to sign the plan and stormed off. Mother agreed to the plan.
At around 10:15 p.m., social workers Chapin and Ekman went to check on the safety plan. After claiming she had been forced to follow the plan though she did not agree with it, mother slammed the door, saying she knew her rights and did not have to talk to Child Protective Services (CPS). Called in for assistance, University of California at Davis (UC Davis) police officers determined father was not in the home.
The family lived in UC Davis student housing because mother was enrolled as a student.
On Monday, June 11, when Yang and Leyva went to the family home to follow up, the parents did not answer the door. Over the telephone, they said they had obtained an attorney and CPS could not call anymore. Mother said the minors were not with them but gave no details.
Later that day, the agency sought a protective custody warrant for the minors because the parents had not cooperated or engaged with the referral and safety plan. No one was home that day.
On June 12, Leyva told the parents about the warrant. They said the minors were in Mississippi and would not be returning.
On June 15, the paternal grandparents informed Yang they had picked up the minors the day before from the maternal grandmother and flown them back to California. The minors were placed in protective custody.
Interviewed that day by Yang, Em. said she had promised her sisters and parents not to " 'talk about the bad stuff' " (i.e., the parents arguing and physically fighting, which frightened her). The older minors refused to be interviewed.
Detention outside the parental home was recommended because the parents were (1) "actively engaging [in] and exposing the children to domestic violence" and "minimizing the significant behaviors that are occurring in the home regarding domestic violence and ongoing substance abuse"; (2) the parents had "mental health needs, as evidenced by their aggression, hostility, resistance to engagement, minimization of safety threats to the children, and their own admittances of mental illness which is unaddressed"; and (3) the family was a flight risk if the minors were returned to the parents.
Detention proceedings
At the detention hearing on June 21, the juvenile court placed the minors temporarily with the paternal grandparents. On June 25, 2018, the court ordered an expedited Interstate Contract for Placement of Children (ICPC) for the paternal grandparents in Mississippi and directed the parents not to contact the minors so long as they were in the paternal grandparents' care.
The jurisdiction/disposition report
The jurisdiction/disposition report recommended that the juvenile court declare the minors dependents of the court, place them out of the family home, and offer reunification services to the parents.
On July 5, father told social worker Chapin that everything in the petition was wrong; Yang had lied there and in court. Yang had called "domestic violence" the minor injuries mother incurred when father tried to hold her down during her night terrors. Yang had also exaggerated his drinking.
On July 9, the minors spoke to Chapin while they were with the paternal grandparents.
A.D. said the parents were not dangerous and there was no reason the family should not live together. The parents' arguments were strictly verbal and brief. Father had woken A.D. up a couple of times to help with mother at night; at other times, mother's screaming woke A.D. Due to mother's PTSD, she screamed and kicked in her sleep, and father would have to wake her to calm her down. Mother used to go to a therapist, but since the therapist had called CPS, mother no longer trusted her. Father had had anxiety for a long time and took medication for it.
A.D. was trying to parent her siblings. She spoke to them in pig Latin so the foster family could not understand her and ordered her sisters not to talk without her permission. She bullied her youngest sister (Em.). Summer school had been recommended because she was in remedial classes but the parents had said she had to stay home and watch her siblings. She was in an unhealthy relationship with a peer, and school staff had advised the parents of concerns about her mental health.
El. knew the agency thought the parents were dangerous but she did not; she thought they should be able to live at their own residence. They argued but did not hit each other. She had never been afraid or worried while in their care. She slept well; they had never woken her up in the night. Her mother said she got bruised in a bicycle accident and El. believed that.
El. followed A.D.'s directions, would not speak or respond to the foster family without A.D.'s permission, spoke to her siblings in pig Latin, and joined A.D. in bullying Em. Em. also followed A.D's directions, despite her sisters' bullying.
The minors had been referred for mental health assessments.
On July 11, Chapin spoke to father. He complained the agency stepped in without investigating and searched his home without a warrant. He also asserted that, contrary to Yang's present claim, she said in front of three witnesses that the minors could go to Mississippi. Father believed the agency had no reason to be involved. According to father, mother's night terrors had begun recently, after she had come to believe she had leukemia. He would have to nudge her and sometimes hold her down at night when she screamed. She had been seeing a therapist since they moved to Davis, but once she completed the allowed number of sessions, she was referred to a new therapist who asked her about abuse.
The parents would not meet with the social worker. Mother refused to be interviewed even by telephone. Father limited his phone conversations and referred the agency to his attorney. Therefore, the agency could not obtain social histories from the parents.
During visitation, the parents repeatedly violated guidelines, making negative comments about the foster home and the child welfare system.
The parents could not provide adequate care for the minors for all the reasons already stated. The minors might require separate placements, given the difficulty of placing sibling sets and A.D.'s negative influence on the younger siblings.
The paternal grandparents, as nonresidents of California, could not be approved for emergency placement there. They were advised to return to Mississippi to complete the assessment process for an ICPC, although this could not be completed until after disposition.
The first addendum report
The first addendum report gave the following new or updated information:
The minors remained in the foster home where they had been placed earlier that month.
On August 6, the parents went for drug testing at the agency's request. Mother tested negative. Father did not test because he could not produce a sample.
On August 27, the agency suspended the parents' visitation due to inappropriate behavior, including the following:
On August 10, at a visit attended by Dr. Shauna Rossington, the executive director of the foster family agency, mother continuously brought up the minors' coming home and made comments about the case even after being reminded not to; father said they would all be together soon. Mother "came at" Dr. Rossington verbally until she said she would not answer questions about the case or argue with the parents, who should start following the visitation rules. Mother then yelled at her until father made her get into the car.
On August 25, after the parents arrived 25 minutes late, mother again started talking about taking the minors home, disregarding the visitation supervisor's repeated warnings. When the visitation supervisor said the visit could end early, mother called her a " 'stupid fucking cunt.' " The minors started crying. Father said: " 'You're a dumb bitch, we are calling our lawyers.' " On the way out, the parents repeatedly called the supervisor a " 'stupid cunt.' "
The social worker spoke to mother about this visit. Mother said she did nothing wrong and the supervisor was just looking for an excuse to cancel the visit. She did not tell the minors they were coming home but did tell them their places at their old schools in Davis were being held for them. She claimed she had called the supervisor a vulgar name only once. She called the social worker a " 'horrible human being' " and a " 'cruel person' " and accused her of pursuing a vendetta because mother had once slammed the door on her.
On a makeup visit on August 26, the parents followed the visitation rules.
The parents' prior and recent conduct indicated that they "have demonstrated great difficulty in being able to manage their behavior in multiple settings and have shown verbal aggression with and without their children present. The parents have made accusations against the foster family and social worker alleging abuse and negligence and appear to be focusing on finding fault with the Agency, service providers, and caregivers rather than addressing the reasons for child welfare involvement."
The contested jurisdiction/disposition hearing
The matter came on for a contested jurisdiction/disposition hearing that started on September 6, 2018, and ended on September 26. The agency's witnesses included social workers Stephanie Yang and Cori Chapin, and Dr. Jessica McCoy (mother's psychiatrist and the reporting party). Mother's witnesses included D.R. (residential advisor (RA) of the parents' UC Davis residence); the paternal grandmother, P.; A.D.; and father. Father and the minors did not call witnesses.
The agency's witnesses
Chapin
Social worker Chapin, who wrote the jurisdiction/disposition report and first addendum report, testified that she had learned of the parents' domestic violence from social worker Yang (who wrote the detention report), not from the parents or the minors. Chapin and her supervisor decided in July or August that the parents needed mental health assessments and e-mailed them an 888 number to contact (the standard procedure for Yolo County).
Chapin stated the minors would not be safe if returned to the parents' custody now because of the domestic violence between the parents, the alcohol use and mental health issues that appeared to contribute to it, the parents' changing stories about what had happened, the parents' failure to begin or return to counseling (so far as Chapin knew), and the parents' difficulty in controlling anger in front of the minors and in different settings. The parents' anger management problems during visits caused the minors to become very upset.
Chapin acknowledged the parents denied abusing alcohol; she was not sure whether alcohol use had played a part in the parents' domestic violence, and the agency had not amended the petition to include an alcohol abuse allegation. Chapin had not personally witnessed the parents being angry toward the minors.
The agency's attempts to investigate the matter were hampered by the parents' failure to cooperate and communicate. They quickly got upset when anything other than their own concerns came up. Initially, they would talk with the agency only with their attorneys present. Mother tried to record every discussion while refusing to provide any information; father claimed to be in counseling but gave no details. Chapin had tried to speak to each parent separately three or four times, and every conversation ended unsatisfactorily.
The agency had not considered returning the minors to the custody of either parent alone, and Chapin did not know whether the parents would be willing to separate. However, the same safety concerns would exist if the parents lived separately. Because mother believed there were no issues and CPS should never have been involved, the agency could not be sure she would follow a safety plan. Furthermore, she had not gotten a mental health assessment or followed visitation rules.
Chapin stated mother had never told her about being treated for PTSD; she had said only, according to social worker Yang, that she was seeing a counselor "for dealing with her stress." Thus, it was unclear whether she was working on what she needed to work on. Chapin considered it "very likely" that father's anxiety and panic attacks, reported by both mother and A.D., were "impacting" his domestic violence.
Both parents had been "very vague about what mental health services they have received or are receiving." Father said he had signed a release of his mental health information, but Chapin did not have a copy of a release for either parent in her file. He refused to tell her what counseling he had been doing.
Dr. Jessica McCoy
Dr. Jessica McCoy, a psychiatrist employed by UC Davis Student Health and Counseling Services, testified that on June 8, 2018, after her first session with mother, she filed written reports with campus police (for suspected domestic violence) and CPS (for suspected child abuse or neglect).
At the session, McCoy saw a hematoma in one of mother's eyes and bruises on each upper forearm; one bruise was shaped like a hand. They did not talk about the bruises but they did talk about the eye injury. Mother said her husband had told her he punched her in the eye but she had no memory of it and did not know why. She also said she had woken up at least three times with bruises and did not remember how she had sustained them. Her husband had told her they occurred when he was restraining her to keep her from going to the train tracks to kill herself. She had no memory of wanting to harm herself.
Mother said her husband had been drinking heavily and his drinking had escalated recently; she had also been drinking more lately but had stopped a week prior to the session and was taking Dramamine to help her sleep. McCoy asked if any sober person was supervising the minors when the parents drank; mother said no. Dramamine is a "deliriant," capable of affecting cognition, memory, behavior and judgment. Combining alcohol with Dramamine might heighten aggression and impair memory.
Mother said she would be leaving soon on a five-week trip to Egypt with her mother, and father would take care of the minors alone, though he also worked. Mother also told McCoy that the parents had been arguing about divorce. Mother said the minors had not witnessed any of these incidents.
McCoy offered mother a safe home as a domestic violence service; she declined the offer. McCoy also recommended that mother cancel her trip.
McCoy decided to report the matter to CPS because she reasonably suspected domestic violence, the parents seemed to be impaired due to intoxicants, and father would be left alone with the minors for five weeks despite his intoxication and violence.
Yang
Social worker Yang testified consistently with her detention report. On cross-examination, Yang admitted that the safety plan presented to the parents did not specifically state in writing that the minors could not leave for Mississippi or that the parents were required to cooperate and engage with the agency. However, she discussed those matters with mother at the time.
Mother's witnesses
A.D.
A.D. testified she had lived in Mississippi with the parents and near the paternal grandparents for most of her life.
A.D. never told Yang that the parents fought physically. The only bruise she ever saw on mother was on her eye, and mother said she got that falling off her bicycle.
Father told A.D. about mother's PTSD when she began having night terrors. He never told her he had to hit mother to try to wake her. His efforts to restrain her never caused bruises.
A.D. was aware of father's anxiety problem because he had talked to her about it, and she believed he had been seeing a counselor before this case began. She thought she had seen him having a panic attack. However, she had never heard mother say he could not be left alone.
A.D. had seen mother going through night terrors once, when father woke the minors to get their help in trying to wake mother. The older minors tried to calm her down, but she was unresponsive and kept screaming; her body was agitated and jerking. Father tried to hold her arms and legs down to keep her from kicking. Before 911 could be called, she awoke with no memory of what had happened.
A.D. had seen mother drunk on weekend afternoons, but she still functioned normally.
A.D. had no negative feelings about her current foster home, but she would rather be with her parents. She could think of nothing she did not like about them. She missed them and was sad to be away from them. There was never a time when she had not felt safe with them.
A.D. and her sisters did not speak pig Latin in their first foster home; they spoke a made-up language for fun (and so that the foster parents would not understand them). She did not tell her sisters they could not talk to the foster parents.
When the minors were upset at a recent parental visit, it was not because of what the parents had said or done, according to A.D. It was because the social worker was ending the visit early.
P.
P., the paternal grandmother, testified she had cared for the minors regularly when they lived nearby. If the juvenile court allowed the minors to stay with the paternal grandparents, they could remain in California "[i]ndefinitely." The business that required the paternal grandfather's return to Mississippi had been handled.
P. believed Yang had told the parents the minors could go to Mississippi; however, she had not discussed that with Yang. Before learning the minors had to return to California, she had had no idea there was an investigation going on.
The agency had not told the paternal grandparents why the minors were being removed from the grandparents' care. No one had contacted them about an ICPC.
When the agency told the paternal grandparents to bring the minors back, they complied. If given custody, they would comply with any orders by the juvenile court. To P.'s knowledge, they had not disregarded any court order or agency advice.
P. knew father had had anxiety for as long as 10 years. She had not seen him have a panic attack, but knew he was on prescribed medication.
Mother told P. about her PTSD around the time this case started. Aside from mentioning her night terrors, she gave no details. P. had not seen any bruises on mother.
Father
Father testified he and mother had never engaged in domestic violence. Father denied telling Yang he and mother hit each other, and he did not believe the minors had said that or demonstrated it to Yang.
Father had "gotten physical" with mother during her night terrors, but only by trying to hold her down or to put her back on the bed so she would not walk anywhere; that had happened three times. The first episode occurred a couple of weeks before the others, which came close together. During an episode, mother was not conscious or responsive, and when she woke she had no memory of what had happened. The night terrors began early in the year after a diagnosis of leukemia that turned out to be erroneous.
If mother reported father had woken her up by hitting her or had punched her in the eye, that would be false. He insisted Yang had made up that story. However, he admitted that once he had unsuccessfully tried to wake mother by slapping her in the face, pinching her, and hitting her on the leg with his belt.
During the last and worst episode, father woke A.D. (El. was already awake) "[b]ecause she's 15 years old and she's mature and responsible and if we need help, we rely on our family." During that incident the minors helped take care of mother while he recorded the episode on his phone. She was not being violent that time; she was just lying in bed and crying. Father needed the minors' assistance because she would not wake up.
Mother began counseling with a campus therapist once per month shortly after the family moved to California because she felt overwhelmed by the move and by ensuing academic problems. She was not in counseling for night terrors then, but they had been trying to set that up when this case started. She was in counseling for it now.
Asked if mother had a hand-print bruise on her left upper arm around May 21, father said he did not keep track of her bruises and did not know what shape a handprint was. He recalled she had a black eye at some time; he believed it happened during a night terror when he was trying to move her from the floor to the bed. He did not believe mother had reported he was physically restraining her while they were under the influence of alcohol.
Father had been in counseling once per month before the case started, but now he was going every other week due to his stress level. He had had at least 20 sessions for anxiety since the beginning of March. He was diagnosed with generalized anxiety disorder, social anxiety disorder, and compulsive tendencies in his early 20s; he was now 37. He had been recently prescribed a medication that worked. His conditions had never interfered with parenting.
Father denied either parent had a problem with drugs or alcohol. He admitted, however, that they had drunk more often than usual in May (once per weekend and once during the week) because he was under stress at work. He did not know why mother would have reported they drank regularly in the evenings.
According to father, no one from the agency told the family before the custody warrant issued that the minors were not supposed to leave for Mississippi. He told a social worker calling about their whereabouts that Yang had said they could leave. When the social worker denied that, father "started to get mad," accused the agency of harassment, and said they needed to talk to the parents' attorney. The social worker said he did not care whether they had an attorney; he was still taking their kids away. Father admitted he did not know what the agency had told mother when he was not present, but insisted Yang had told others the minors could leave, including the downstairs neighbors and father's mother-in-law. He had also agreed to stay out of the home "until Monday when the kids left," as Yang told him to do. Father admitted he did not give CPS the minors' address in Mississippi, but claimed it was only because CPS did not ask.
Asked why Em. would say she was told "not to talk about the bad stuff," father said he did not believe she said that. Before the minors returned to California, father had told them they were a family and had to stick together.
At the visitation session where mother called the visitation monitor a vulgar name, the parents were upset with her because she falsely claimed she had warned them twice not to talk about the minors going home, and then abruptly ended the visit, upsetting the minors. Asked whether he had also called the visitation monitor a "stupid vulgar name," he admitted he had called her that name and the minors were present. He also admitted he followed her outside and took pictures as she loaded the minors into the car.
Asked whether he could refrain from using vulgar language during visits if visitation were reinstated, father replied with a tirade about the monitors' failure to follow the rules. Father finally conceded the parents could follow visitation rules, but "we need CPS to meet us in the middle."
Asked if he had ever worked on anger management in therapy, father said he had never been diagnosed with anger issues. He had also not discussed mother's night terrors and how to respond to them with his therapist.
D.R.
D.R., the RA, lived with her husband and their children directly below the parents' apartment. In the eight months she had known the parents, she had never suspected domestic violence between them; she never heard fighting or yelling. The minors always appeared well cared for and happy in the parents' company.
D.R. never heard screaming in the middle of the night from upstairs. She saw mother once with a black eye that mother said she got by falling off her bike. She never saw any other bruises on mother.
One night mother came to D.R.'s apartment crying because CPS had come again. D.R. saw them waiting outside the building. Going back upstairs, she and her husband were with mother when the campus police arrived.
D.R. did not remember whether CPS came again that night, but they came several times afterward.
The juvenile court's ruling
After hearing argument, the juvenile court found and ruled as follows:
"[W]hat we . . . have is evidence of these incidents at night in which . . . what we can tell for sure is that there is a conflict between the mother and the father, and it has happened three to five times where there has been . . . intentional, physical contact by the father against the mother. It's either an effort to restrain in some sort of safety way or it's intentional violence against the mother.
"There is no testimony before the Court that the mother consented to this level of violence and that is compelling to the Court.
"So we do have these circumstances, and two of the children witnessed the circumstances at least one time. According to the father, the mother has indicated and made suicidal ideations. There is this claim that she's going to go out and commit suicide and by train . . . . It is a bit vague, but it was taken to be so serious that he indicated he needed to restrain the mother.
"As a result of the restraint, there is physical injuries to the mother. The doctor testified, saw them firsthand. The neighbor saw the black eye. The CPS social worker saw injuries, and there were injuries to the arms, the lips, the eye, all of that is in the record and, of course, we know that this has happened three to five times to varying degrees.
"The father admitted to using a belt . . . against her leg. He admitted to slapping her in the face, claiming he was trying to wake her up from some sort of quote, night terror.
"There is evidence . . . that the parents drink alcohol to relieve stress. The father, basically, said that they drink alcohol after the kids go to sleep, because he's worried about his work and . . . according to the testimony, the alcohol consumption increased during the month[] of May, at least, for the father.
"Both the parents seem to be on some level of medication, whether they're over the counter or prescription drugs, and [are] unclear what role that plays, but there is definitely an element of alcohol at night that was related to the violence.
"Again, the stress in the household. They recently moved from Mississippi to California. They used to live in the cocoon . . . of being close to the paternal grandparents on the same property, in a life that they're familiar with in Mississippi.
"They moved to California without the grandparents, into UC Davis housing, and something changed or something happened that began to give rise to stress. There was discussion about the divorce between the parents and the father was concerned about work. There was increase in alcohol intake, so all that is true.
"The mother, according to the record, suffers from a serious mental health condition. She has been diagnosed at some point with PTSD, and if you believe the father, then, she has additional mental health trauma of night terrors, which is a concern.
"The father also suffers from a serious mental health condition. He experiences extreme anxiety, and he's under the care of a counselor, and some medication, it sounds like.
"So both parents have mental health conditions that they're being treated for.
"The mother and father have aggressive personalities under the stress that they're facing. They were and have been overly and unwarranted[ly] aggressi[ve] against the CPS workers. The yelling in front of the children with the police there, even if the kids are in the back room of a small apartment. It is still quite problematic, and that is noted, and just the yelling, the vulgar language in front of the children at visitations.
"The mother and father have embroiled the children in their adult problems and their conflict, and at some point the children were told by adults not to talk. This caused . . . an enormous amount of stress to these children. I can't imagine what it would be like to witness your parents hitting one another . . . and then to be told not to talk about it when people are trying to help the family.
"These kids have gone through an extraordinary amount of stress related to that type of adult conduct.
"Parents have no insight [into] the circumstances. No actions were taken to provide protected capacity for the mother, if you believe that she experiences night terrors, and nothing to prevent the exposure of her problems, if you believe that, to the children.
"[¶] . . . [¶]
"So, at the end of the day, there was discussion about whether this is domestic violence.
"The Court believes this is the wors[t] kind of domestic violence. The father has made the mother out to think that she's crazy, that she has some sort of night terror problem, and instead he's violently punching, slapping, hitting with a belt, restraining her in the middle of the night, and then telling her that she's having night terrors and suicidal ideations, and that . . . is an extreme form of domestic violence. . . .
"And, again, there was nothing before the Court that somehow the mother was appreciative of the violence against her.
"So that leads us to take jurisdiction by preponderance of evidence as to [section] 300(b)(1), Counts 1, 2, 3 and 4 all have been substantiated.
"[¶] . . . [¶]
"And the Court has taken this matter after contested evidence, . . . and I want to underscore in the Court's factual findings that [El.] described to the social worker that she saw her parents slap and punch each other, and she was fearful that someone would get hurt.
"And, again, [Em.] described her older sister as covering her eyes and crying while this type of domestic violence occurred in the household. [Em.], of course, said the same conduct was taking place, and later that she was told not to talk, and I've already commented about how harmful that is to the children.
"So, those are the facts before the Court as to jurisdiction.
"With respect to disposition, there is clear and convincing evidence that there is a substantial danger of harm to the children, both physical harm that comes from domestic violence in this case, the risk is palpable, if the father is hitting the mother in the middle of the night, calling the children to it, or that the conflict is so loud that the children are drawn to it, they're in the middle of a violent episode in a small apartment.
"The emotional damage is off the charts on what that causes or what it has already caused. And, so, both the risks of physical harm and a severe emotional distress are before the Court.
"As to whether there . . . would have been services to mitigate the situation, the parents . . . from day one, from when they were contacted by the agency and up to this point[,] have not been amenable to services. They've done some individual counseling, but they have not addressed the seriousness of the domestic violence in the household, and they've not addressed taking protective measures to [e]nsure that these children aren't embroiled and not at risk because of domestic violence.
"I want to underscore that there is zero justification for this level of violence against this spouse . . . . There is no basis to ever embroil children in this level of domestic violence[.] [B]ut for the mandated reporter in this case, and the agency, violence would have continued in that household and escalated, and the children would have likely been subject to severe emotional distress, if not the physical dangers that the Court has described.
"[T]he grandparents . . . do not have [an] appropriate level of insight into the seriousness of the problem that the mother and father put themsel[ves] in, and that concerns the Court.
"I also don't believe the grandparents have an appreciation for the degree of embroilment that the children have experienced, and the emotional stress that [they] have experienced . . . .
"[¶] . . . [¶]
"[T]he Court has drawn reasonable inferences, and this is where all the evidence leads. This is not an innocent matter of spouse trying to protect another spouse from quote, night terrors, that's not what the facts show, and the children are not somehow in a safe environment where all five of them are together, trying to live a good, clean, safe life.
"This is extremely damaging to children, and it will have to be addressed in the case plan.
"So there is clear and convincing evidence of detriment, of danger, I should say, and the Court will put this on six month family reunification. Adopt the case plan directed at the factual findings the Court has just made, and the parents, we need a baseline about their mental health situation, and both parents . . . are being ordered to submit to a psychological evaluation, and then to engage in mental health counseling directed at reunification and directed at the factual finding that the Court has made here.
"So, that's essential. The children will be ordered to participate in individual counseling directed at the issues addressed here in court today.
"And . . . we've already adopted a random testing program. Both parents are prohibited from drinking alcohol or using any illegal drugs, and they will be tested, accordingly.
"So those are the central features of a case plan.
"As to placement, the Court finds that there is a preference in favor of family, and . . . the Court takes the grandmother's statement that she's prepared to live during the reunification period in Yolo County on the UC Davis campus. I take that in good faith, and I'm ordering that the children be returned to the grandmother, and that the parents have no contact with the children outside of the Court[-]set visitation plan, and I expect the grandmother to live by that, and the grandfather has free contact with the children. . . . [T]he grandmother would be admonished not to discuss this case, or the Court's findings or any of that with the children. Leave that to the counselors, and just be a loving grandmother and grandfather, outside of what the parents and the grandparents have taken on as a battle. That's not what this is at all. This is all about safety of the children, and that's what we're trying to get at.
"Okay. So, then, final step of it is the visitation for the parents, and the parents should have a minimum of six hours supervised visitation with the children. The agency has the authority to increase and to use alternate supervisors . . . ."
DISCUSSION
I
Grounds for Jurisdiction
Father contends the last two alleged grounds for jurisdiction (b-3, going to mother's PTSD, and b-4, going to his own anxiety disorder and panic attacks) were not substantiated. He concedes the other two grounds (b-1 and b-2, going to domestic violence) were substantiated and that a single valid ground for jurisdiction suffices. (In re Drake M. (2012) 211 Cal.App.4th 754, 762; In re I.A. (2011) 201 Cal.App.4th 1484, 1491; In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) He asserts, however, that we should review his contention because the juvenile court's findings as to b-3 and b-4, if not reversed, could prejudice the parents in the future. (See In re Drake M., at pp. 762-763.) We are not persuaded.
Father asserts that the findings on the b-3 and b-4 allegations "are pernicious because they involve the stigma of mental health issues." However, father does not cite supporting authority for the premise that "the stigma of mental health issues," without more, is sufficient to require review of these findings, despite other uncontested and admittedly sufficient grounds for jurisdiction. (Cf. People v. Stanley (1995) 10 Cal.4th 764, 793 [undeveloped argument unsupported by authority need not be considered].) Nor does he spell out any adverse consequences, either in this proceeding or in any other context, that could be caused by this "stigma." (Cf. In re Drake M., supra, 211 Cal.App.4th at p. 763 [distinction between "offending" and "non-offending" parent].) The fact the parents have been ordered to undergo psychological evaluations is not such a consequence, because those evaluations could prove favorable to the parents' interests and sufficient to dispel any supposed stigma from the jurisdictional findings. But even if the evaluations support the jurisdictional findings, they could help the agency to tailor services to meet the parents' needs, thus facilitating reunification -- which would be a positive consequence, not an adverse consequence, for the parents.
Father observes that a juvenile court can find mental disabilities would render parents incapable of utilizing reunification services. (§ 361.5, subds. (b)(2), (b)(10).) But the juvenile court has not so found. On the contrary, the court has ordered reunification services for both parents.
Father's suggestion that these provisions could be invoked against the parents in some future proceeding based on the present findings is not persuasive. Dispositional orders in any future proceeding would have to be based on new jurisdictional findings, not on the present findings.
In his reply brief, father presents new arguments that are not properly before us because they could have been raised in his opening brief but were not. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765.) Nevertheless, we address them briefly.
Father asserts that if the b-3 and b-4 findings had not been made, the reunification plan adopted at disposition might have been different. Even if so, this does not show the parents were prejudiced by the making of these findings.
Father also asserts the ordering of reunification services does not preclude the agency from later filing a section 388 petition to bypass services on the ground of the parents' mental disabilities. (Cf. § 361.5, subd. (a)(2).) But if that were to happen, it would not be a consequence of the jurisdictional findings, but of the parents' failure to benefit from services already provided. Thus, even aside from its speculative character, this assertion does not show the parents were prejudiced by the b-3 and b-4 findings.
For all of the above reasons, we do not reach the merits of father's challenge to the jurisdictional findings as to allegations b-3 and b-4.
II
Substantial Evidence
Mother, joined by father, contends no substantial evidence supports the dispositional orders removing the minors from the parents' custody. We disagree.
A minor may not be taken from his or her parents' physical custody unless the juvenile court finds clear and convincing evidence there is a substantial danger to the minor's physical health, safety, protection, or physical or emotional well-being 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 parents' custody. (§ 361.5, subd. (c)(1).)
"Ongoing domestic violence, committed by both parents, in the presence of the children . . . is substantial evidence of a substantial danger to the children's emotional well-being, if not their physical well-being." (In re J.S. (2014) 228 Cal.App.4th 1483, 1493-1494.) Therefore, it is sufficient cause to remove the minors from the parents' custody, even if it does not show danger to the minors' physical health. (Ibid.)
"The jurisdictional findings are prima facie evidence the minor cannot safely remain in the home. [Citations.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of [section 361.5] is on averting harm to the minor. [Citation.] We review the court's dispositional findings for substantial evidence. [Citations.]" (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.) This standard requires us to view the evidence in the light most favorable to the court's findings and orders. (In re Miguel C. (2011) 198 Cal.App.4th 965, 969.)
Here, the juvenile court found the parents' domestic violence in the minors' presence had endangered the minors and put them at risk of future harm. Even assuming for argument's sake that father's claim about how mother got injured was true, the parents' failure to protect the minors from exposure to her "night terrors" had already inflicted emotional harm on the minors, and the parents' apparent failure to take steps to deal appropriately with this situation risked the infliction of further harm. Although the parents claimed to be in ongoing counseling, neither presented evidence they were using their sessions to learn how to manage the "night terror" problem. And, as the court found, father's claim that he deliberately used the minors to help him try to restrain mother during these episodes showed he had no grasp of the emotional harm such scenes might inflict on the minors.
But there was also substantial evidence the juvenile court found credible that the parents' "night terrors" story did not fully explain mother's injuries. The younger minors originally told the agency the parents hit and punched each other, and father originally admitted that before partially retracting the admission. When Em. spoke to the agency workers again after the minors were in custody, she said she had promised the family not to talk further about "the bad things." This evidence indicated mother suffered at least some of her injuries during physical altercations with father when both parents were awake and possibly suffering from impaired judgment due to alcohol (or alcohol plus Dramamine in mother's case). It also indicated the parents were pressuring the minors into silence for the sake of family solidarity that would greatly increase the emotional damage they had already suffered. The fact mother apparently told most of the people she knew, including the minors, that her black eye came from falling off her bicycle, while telling Dr. McCoy (consistently with father's testimony) that father inflicted the injury, further suggested the parents' lack of credibility.
In addition to the undisputed jurisdictional findings, the parents' conduct after the case was opened constituted substantial evidence the minors were at substantial risk of harm in the parents' custody. As late as the dispositional hearing, the parents refused more than the bare minimum of cooperation with the agency, consistently presented as hostile to the social workers and the visitation supervisors, and tried to get the minors to see the case as a matter of "us against the world." The parents flouted the rules during visitation in their continuing attempt to turn the minors against the child welfare system, and father continued to justify this conduct at the dispositional hearing. Although mother had tested negative for alcohol once, father had not yet successfully tested. Despite their diagnosed psychological conditions, the parents did not undergo the mental health assessments urged by the agency. And as of the dispositional hearing, there was no evidence either parent acknowledged having done anything wrong, which suggested it was unlikely they would soon become compliant with their case plans.
Mother argues the agency "failed to provide any current evidence supporting its request to remove the children from their mother's custody" because it "relied on the same information and evidence used at the jurisdiction hearing to support its dispositional request." We reject this argument.
First, mother cites no authority holding the evidence supporting jurisdiction may not also support removal from the parents' custody, and we know of no such authority. Second, because the jurisdiction and disposition hearings were held concurrently, it was inevitable that much evidence would be offered for both purposes. Third, it is simply not true the agency offered nothing more than the evidence in support of jurisdiction to justify removal from the parents' custody. As we have explained, the parents' conduct after the agency took custody of the minors, and much of the evidence offered by mother herself about that conduct at the jurisdiction/disposition hearing, also supported the juvenile court's decision to remove the minors from the parents' custody.
Mother cites In re Henry V. (2004) 119 Cal.App.4th 522 at page 528, for the proposition that the agency's burden to justify removal is heavier than its burden to justify jurisdiction. But that decision does not hold that the agency cannot meet both burdens with the same evidence.
Mother asserts there were reasonable alternatives to removing the minors from her custody: "(1) paternal grandmother living in the home[;] (2) mother obtaining a psychological assessment; (3) medication compliance, if the medication was recommended by a psychiatrist; and (4) therapy with a licensed psychotherapist." In addition to these numbered points, she also suggests that "the court order to stay away from the children's home could have been applied to the father only," that the juvenile court "could have ordered [the agency] to make frequent, unannounced home visits to ensure the children's safety," and that the court "could have ordered [the agency] to provide in-home services, such as Family Preservation or Wraparound, family and individual counseling to ensure the children's safety." We are not persuaded.
First, mother does not show she expressly argued below for these measures as alternatives to removal, or that the court did not consider them as such. To prove that "[t]he record, in this case, is void of any consideration by the juvenile court of any alternative other than removal of the children from [mother]'s custody[,]" mother offers only the bare citation "RT 357-389." This unexplained citation to 32 pages of the reporter's transcript, beginning in the middle of counsels' closing argument on a point unrelated to anything mother is discussing here and running to the end of the court's ruling, is insufficient and does not support mother's assertion. Factual claims unsupported by appropriate record citation are forfeited. (In re S. C. (2006) 138 Cal.App.4th 396, 411.)
Second, the juvenile court expressly found the parents had not taken advantage of the services already offered them, either before or after the agency executed its protective custody warrant. To quote the court's finding on this point again: "As to whether there . . . would have been services to mitigate the situation, the parents have, from day one, from when they were contacted by the agency and up to this point[,] have not been amenable to services. They've done some individual counseling, but they have not addressed the seriousness of the domestic violence in the household, and they've not addressed taking protective measures to [e]nsure that these children aren't embroiled and not at risk because of domestic violence." This amounts to an implied finding that no reasonable alternatives to removal existed because the parents had refused to exercise any of the options available to them to ameliorate the situation without removing the minors from their custody, and had not shown any signs of a changed attitude as of the disposition hearing. So long as they continued to justify their conduct, the court had no basis to conclude that anything short of removing the minors from their custody would be an adequate remedy.
For all the above reasons, we reject mother's assertion that "there was no evidence, substantial or otherwise, supporting the juvenile court's dispositional findings and orders for removal of the children."
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
BUTZ, J.