[1] All further statutory references are to the Welfare and Institutions Code.
[1] The first time C.J. had been taken into protective custody was in February 2012, when she was three weeks old. On that occasion mother and C.J. were living in a home with known substance abusers, and though she denied using any drugs, marijuana was found at mother’s bedside. Police arrested mother on outstanding warrants for Vehicle Code violations and took C.J into protective custody. After mother was released from custody, she moved in with her mother, and C.J. was released to her care. The Department closed the case as unfounded. The maternal aunt also reported that in the same month, the parents were fighting when mother left the infant alone in the garage “while she went after the father screaming and jumping on the top of his car in an effort to stop him from leaving.”
[1] According to the amended petition, father had drug-related convictions.
[1] Mother also reported that in February 2013 she left the child with Joseph “and he was ‘passed out.’ ”
[1] Mother admitted that she had used cocaine, methamphetamine, and ecstasy in the 1990s, but she had stopped using these drugs on her own.
[1] When recalled later in the hearing, mother testified that she was “pressured” on that occasion, but she was not abusive; she was late for work and was only urging C.J. to “be responsible” by remembering to bring her things with her. She admitted that she had raised her voice to C.J. in the past six months, but for the most part, she did not; she tried to use a “gentle” voice with her.
[1] Folcik described mother more specifically as having had “rapid speech. She’s gone back and forth between being very polite and kind and idealizing me as someone who is a supportive figure, and then a few minutes later escalating and becoming very angry with a loud volume, pressured speech, and devaluing me. Telling me that I am against her. That I’m trying to have something bad happen to her, and I’m being sneaky.”
[1] Section 387 provides, in relevant part, that “[a]n order changing or modifying a previous order by removing a child from the physical custody of a parent . . . and directing placement in a foster home . . . shall be made only after noticed hearing upon a supplemental petition.” (§ 387, subd. (a).) The supplemental petition “shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child . . . .” (§ 387, subd. (b).)
[1] Section 361, subdivision (c)(1), states, in relevant part: “A dependent child shall not be taken from the physical custody of his or her parents or guardian or guardians 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 or guardian’s physical custody . . . .”
[1] Mother’s claim that the order was based on a one-time incident, the car accident, is not well taken. The court in fact rejected the allegation related to the accident. Thus, this case is not comparable to In re Henry V. (2004) 119 Cal.App.4th 522, where the social worker believed that services were available to strengthen the parent-child bond and the juvenile court failed to apply the clear and convincing evidence standard before removing the child, who had suffered a single burn from an undetermined source. Likewise inapposite is In re A.E. (2014) 228 Cal.App.4th 820, 823, where removal was unwarranted based on a single act of father’s disciplining the minor by striking her with a belt.
[1] This case is distinguishable from In re A.L. (2017) 18 Cal.App.5th 1044, on which mother relies for the assertion that harm may not be presumed from mental illness alone. The children in that case were older than C.J., there were always other adults in the home, and they had been well cared for notwithstanding their mother’s schizophrenia. Here there was evidence that C.J. had already suffered emotional harm from mother’s volatile and aggressive behavior, and there were no adults in the home who could be relied on to protect C.J. from harm. Nor is In re James R. (2009) 176 Cal. App. 4th 129 helpful to mother. There the appellate court found insufficient the “mere possibility of alcohol abuse,” together with the absence of evidence of a risk of harm, where “the minors were healthy, well cared for, and never unsupervised.” (Id. at p. 137.) In light of the harm C.J. had already suffered and mother’s unwillingness to address the issues that had negatively affected her young child’s development, a sufficient basis was established for determining that the child would be at continued risk if she were not removed during the dependency period.
[1] On this point In re Ashly F. (2014) 225 Cal.App.4th 803 is inapposite. In that case there was no report—and no evidence—that the social worker had considered any reasonable alternatives to removal of the children from the home based on the injuries they had suffered from mother’s excessive physical discipline. The court merely concluded that reasonable efforts had been made to avoid removal, relying on the department’s statement in conclusionary terms that there were no reasonable means to protect the children without removing them from the parents’ custody. There was, however, evidence of such reasonable means to protect those children, such as removing the mother from the home. There is no comparable failure to consider such reasonable efforts here. Mother was familiar to DFCS; she had been offered services while maintaining custody of C.J. in her home. Those efforts had failed. The court did not, as in Ashly F., overlook the procedural safeguards that ensure protection of the child while making “reasonable efforts . . . to prevent or to eliminate the need for removal of the minor from . . . her home.” (§ 361, subd. (e).)
