Filed 6/9/22 In re G.B. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In this dependency action, J.D. (Mother) appeals the juvenile court’s dispositional order removing her three oldest children from her care. We affirm.

BACKGROUND

Petition and Detention (Santa Barbara County)

On July 17, 2020, the Santa Barbara Department of Child Welfare Services (Santa Barbara Department) filed a Welfare and Institutions Code section 300[1] petition alleging G.B. (then six years old), A.B. (then five years old), and A.R. (then two years old) (collectively, Minors), who were in Mother’s custody, had suffered or had a substantial risk of suffering serious harm.[2]

In a report submitted in advance of the detention hearing, the Santa Barbara Department reported Mother had been placed on a section 5150 hold on July 14, 2020, after telling law enforcement she was driving over 100 miles per hour and was planning to attack the aunt of her boyfriend, Abel E. Mother had a long history of mental illness, including defiance, aggression, and anxiety, starting when she was a minor in the dependency system. Mother had a child welfare history involving Minors starting in 2014, which “demonstrated a pattern of mental instability” including domestic violence with Minors’ father (Father) and “explosive anger around her children and with community partners.” In February 2019, it was reported that Mother and Father (collectively, Parents) were not providing proper care for A.R., who was born with a congenital virus and required constant medical monitoring to avoid neurological damage and hearing and vision loss. In April 2019, Mother had a substantiated referral for physical abuse of G.B. after he reported Mother hit him in the eye, leaving a bruise. It was reported that G.B. was very fearful of Mother. In January 2020, Minors were found unattended at home and A.R., then one year old, was eating pet food while Mother was in a bedroom after reportedly taking “excessive amounts of Theraflu.” On July 8, 2020, it was reported Mother was 25 weeks pregnant, vomiting blood, had not been getting prenatal care, was depressed and in an abusive relationship, and had not eaten in two days. Mother left the hospital against medical advice after angrily throwing things in the room and appearing to be under the influence.

After Mother’s section 5150 hold, Father, who lived in Santa Rosa, drove to Santa Barbara to pick up Minors. Father told the Santa Barbara Department he and Mother share equal custody of the two oldest Minors, but the youngest, A.R., had not been included in their custody mediation. Father lived with his mother and brothers, who could help watch Minors while Father was at work. The Santa Barbara Department agreed to let Father take Minors.

Mother was angry and agitated when interacting with the Santa Barbara Department. When Father contacted Mother to get Minors’ belongings, including A.R.’s medically prescribed hearing aid and glasses, Mother initially agreed but then began to yell and curse at him. The Santa Barbara Department contacted Mother to inquire about getting A.R.’s devices, and Mother angrily responded that she already told Father “ ‘the hearing aid is broken and the glasses are lost.’ ”

The Santa Barbara Department recommended the juvenile court detain Minors from Mother and place them with Father. At the July 20, 2020 detention hearing, the court so ordered.

Jurisdiction and Transfer (Santa Barbara County)

In a report filed in advance of the jurisdiction hearing, the Santa Barbara Department recommended the juvenile court sustain the petition, order Minors to remain in Father’s care, and transfer the case to Sonoma County.

Father told the Santa Barbara Department Mother struggles with anger and had been prescribed medication for her mental health issues, but “every couple of years” would stop taking it because “she felt she could handle it.” Mother told Father her ex-boyfriend was hitting her and Father’s family had noted times that the ex-boyfriend left marks on Mother. Father stated his relationship with Mother had been toxic and had involved physical violence, which he regretted. The last incident, in 2015, resulted in a misdemeanor conviction for Father. Father completed anger management and three years of probation and had not been in trouble since. After Parents’ relationship ended in January 2018, Minors lived with Father full-time until he moved to Santa Rosa in September 2019. Minors then lived with the paternal grandfather, and Father continued to talk to Minors every day or two by video call.

Mother disputed the petition’s allegations. She said that on July 14, 2020, although she told law enforcement she was driving 100 miles per hour, she was not actually driving that fast, and although she told them she wanted to hurt someone, she did not intend to actually hurt anyone.[3] Mother denied having any mental health concerns and stated she has a therapist. Regarding the April 2019 substantiated referral for physical abuse of G.B., Mother denied the allegation, stating G.B. was living with Father at the time. Mother reported Minors were with Father because she did not want to subject them to instability while she was homeless. As for the January 2020 incident when Minors were found fending for themselves, Mother said she was sick and had used a table to prevent Minors from entering the kitchen, but one of her roommates had moved the table, which enabled A.R. to get to the pet food. She denied any domestic violence with her then ex-boyfriend, Abel E. She stated she told police in March 2020 that Abel E. had punched her, but called law enforcement on July 14, 2020, the day of her section 5150 hold, to clarify that this was a false report.

The paternal grandfather told the Santa Barbara Department Minors lived with him from September 2019 to May 2020. Mother visited regularly at first but gradually her visits declined. G.B. told the paternal grandfather that he saw Mother’s ex-boyfriend slap Mother.

Mother’s therapist told the Santa Barbara Department that, shortly before Mother’s section 5150 hold, Mother had been referred to the therapist by her obstetrician due to concerns about depression. Mother completed an assessment on July 10, 2020 and had participated in three sessions at the time of the jurisdiction report. Following an assessment at an out-patient clinic, it had been determined that Mother did “not meet Medical Necessity for Severely Persistently Mentally Ill criteria.”

A friend of Mother’s for 10 years, Carrie E., who is also a court appointed special advocate (CASA), told the Santa Barbara Department she had no concerns about Mother’s mental health.

The two older Minors told the Santa Barbara Department they wanted to live with Mother, and the oldest Minor, G.B., had a difficult time leaving a visit with Mother. When A.B. told the Santa Barbara Department that Mother spanked her, G.B. told A.B. to stop talking. G.B. told the Santa Barbara Department Abel E. “ ‘pushed [Mother] on the car. He was mean.’ ”

At the August 31, 2020 jurisdiction hearing, the social worker testified Mother was diagnosed with a mood disorder as a result of the section 5150 hold. Mother testified she had been diagnosed with and had taken medication for ADHD, bipolar, anger management, and anxiety when she was in the foster care system. After she left foster care, approximately nine years earlier, she stopped taking medication because she “didn’t need it.” Mother did not believe she had a mood disorder.

Mother testified that, when Father was unable to retrieve A.R.’s glasses and hearing aid after Mother’s section 5150 hold, she had already told Father the glasses were scratched and Mother had taken them in for repair, and that the hearing aid was broken and an appointment had been made to get it fixed. When asked about the January 2020 allegation about A.R. eating pet food, she testified she used the table as a gate to prevent A.R. from entering the kitchen, but when the ambulance came, the paramedics moved the table and allowed A.R. to enter the kitchen. Mother denied leaving the hospital against medical advice on July 8, 2020, testifying they told her she was dehydrated. She denied hitting Minors and denied any domestic violence in her relationship with Abel E. Mother testified that, since her section 5150 hold, she was talking to her therapist once or twice per week.

At the conclusion of the hearing, the Santa Barbara juvenile court sustained the petition and ordered the case transferred to Sonoma County for disposition.

Disposition (Sonoma County)

In an October 2020 report filed in advance of the disposition hearing, the Sonoma County Human Services Department (Department) stated Mother was “angry and hostile” for nearly an hour during a scheduled telephone interview, ranted about child protection workers, denied any mental health issues, and “took no responsibility for the current situation.” Mother gave birth to her fourth child on October 6, 2020. A report of general neglect of this child was currently under investigation by the Santa Barbara Department.

Mother’s therapist reported that Mother had been making weekly contact and reaching out for help. The therapist believed Mother’s responses were “trauma responses” and, while the therapist had worked with Mother to deescalate immediate situations, Mother had “not yet reached a place where she can work on deeper issues.” The therapist opined that Mother could make substantial progress in six months. In a subsequent conversation, the therapist expressed concern that Mother “was experiencing ‘low level’ suicidal ideation.”

Father told the Department he did not want to cut off Minors’ relationship with Mother. He did not believe Minors were safe in Mother’s care because of her unpredictable behavior, but he offered to bring them to Santa Barbara for visits supervised by the Santa Barbara Department. Father stated Minors went to live with the paternal grandfather in the fall of 2019 because Father lost his house when his employer closed down.

G.B. said several times that he misses Mother. A.B. agreed things were fine in Father’s home and was otherwise not forthcoming. A.R. had numerous medical appointments in September which revealed that her hearing and eye tracking was improving. Mother had daily video calls with Minors and Father reported they generally went well. Father reported the older Minors sometimes talk about how much they miss Mother, but then they move on.

The Department opined, “There is no lack of love for these children, from either parent. The problem is that the mother responds to trauma in a way that is unpredictable, frightening, and at times dangerous. She has the ability to learn how to control her response but this will take time.” The Department recommended family maintenance services for Father and reunification services for Mother. The Department subsequently changed its recommendation as to Mother, taking the position that, because Minors were placed with Father, a custodial parent, Mother was not legally entitled to reunification services but could receive enhanced services.[4]

At the December 2020 contested hearing, Mother’s friend Carrie E. testified she was Mother’s ex-sister-in-law and had known Mother for ten years. Carrie E. had two children, five and eight years old, and would have no concerns about Mother taking care of them. She described Mother as “loud” and “dramatic,” saying “that’s just her.” She had been a CASA for two years and had been supervising Mother’s visits with Minors when Father brought Minors to Santa Barbara. She had never seen Mother lose her temper on a visit and had no concerns about Mother taking care of Minors. She described two visits when G.B. refused to leave with Father at the end of the visit, but testified Mother was able to persuade him to go. When asked on cross-examination about whether she knew of any domestic violence incidents with Abel E., Carrie E. testified last year Mother had mentioned Abel E. “was pushing and stuff” during an argument, but Mother “knows I’m not really the biggest fan of him, so I don’t think she talks a lot to me about him.”

Mother testified that Minors lived with Father after Parents separated in early 2018 because Mother was homeless, but Mother saw them every day. After Father moved to Santa Rosa in September 2019, Parents agreed Minors would live with the paternal grandfather because Mother was still homeless. Mother saw Minors as often as possible, but at the time she was working and going to school. Mother got her own housing in May 2020 and Minors moved in with her.

Mother addressed the incident when A.R. was found eating pet food. She was renting out a room at the time and was feeling sick, so she placed a table to prevent Minors from entering the kitchen. Mother began having trouble breathing, called Abel E. to pick up Minors, and called 911. When the paramedics came, Mother asked G.B. to open the front door and, in doing so, G.B. moved the table blocking the kitchen. A.R. was then able to enter the kitchen and started eating dog food. Mother also addressed the incident when G.B. had a black eye. Mother testified G.B. hit himself with an unknown object he was holding while chasing his sister. As for the incident leading to Mother’s section 5150 hold, Mother testified she was very upset that day after learning Abel E. had cheated on her. She admitted telling law enforcement that she wanted to hit his aunt, but testified she was not actually going to do so.

Mother testified that, shortly before this incident, she had asked her obstetrician for a referral to a therapist. Since then, she had been going to therapy weekly and found it very helpful in teaching her coping mechanisms so that she would not get so angry. She also asked the Santa Barbara Department for anger management and parenting classes. She was currently pursuing anger management with her therapist, with the agreement of the Santa Barbara Department, and was scheduled to begin parenting classes the following week.

Mother testified she and Abel E. were “working things out.” She denied any domestic violence with him. A police report she filed March 2020 claiming Abel E. had punched her was false. G.B. did witness Abel E. push her against a car, but she and Abel E. were only joking around. Mother and Abel E.’s baby had been in her care since birth. Mother admitted the Santa Barbara Department had filed a petition regarding the new baby after the baby tested positive for marijuana. The new petition also alleged domestic violence between Mother and Abel E. Abel E. was not currently living with Mother, but he did visit and sometimes spent the night. The Santa Barbara Department had not asked Mother to engage in domestic violence counseling, but Mother was willing to do so.

Mother praised Father, describing him as “a great father” who has “always done what’s best for our children just as much as I have.” She testified “t’s not that I think it’s best” for Minors to live with her, but she knew Minors wanted to and they would be less crowded in her house than they were with Father.

“At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child’s physical health without removing the child (detriment finding). (§ 361, subd. (c)(1).) 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.” ([i]In re D.B. (2018) 26 Cal.App.5th 320, 328.) The juvenile court must also determine “whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor” and “shall state the facts on which the decision to remove the minor is based.” (§ 361, subd. (e).)

“A juvenile court’s removal order at a disposition hearing will be affirmed on appeal if it is supported by substantial evidence.” (In re V.L. (2020) 54 Cal.App.5th 147, 154.) Because the juvenile court’s findings must be supported by clear and convincing evidence, “ ‘the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.’ ” (Id. at p. 155.)

Mother argues no substantial evidence supports the juvenile court’s finding because at the time of disposition—five months after the petition was filed—Minors were no longer in danger. She points to her weekly therapy sessions, participation in anger management and parenting classes, willingness to participate in domestic violence counseling, and positive visits with Minors.

As an initial matter, we agree with Mother that the jurisdictional findings are not prima facie evidence in support of removal because Minors were not adjudicated dependents under section 300, subdivision (e). (Cf. § 361, subd. (c)(1) [“The fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 [severe physical abuse] shall constitute prima facie evidence that the minor cannot be safely left in the physical custody of the parent . . . with whom the minor resided at the time of injury.” (italics added)]; see In re E.E. (2020) 49 Cal.App.5th 195, 219 [“The statutory presumption in favor of removal applies only when the child has been adjudicated a dependent under section 300, subdivision (e).”].)

Nonetheless, substantial evidence supports the juvenile court’s removal order. While Mother’s participation in services is commendable, it alone does not negate clear and convincing evidence of a substantial danger. Mother asserts her “mental health had stabilized,” but she continued to exhibit unpredictable outbursts, as evidenced by her nearly hour-long tirade to the Department’s social worker. Her therapist reported progress in helping Mother deescalate situations but also expressed concerns about suicidal ideation. In addition, Mother continued to minimize or deny prior incidents including neglect and abuse of Minors and domestic violence incidents involving Abel E.

Mother argues the juvenile court failed to consider alternatives preventing the need for removal, such as placing Minors with Mother under a family maintenance plan or leaving Minors in Father’s care without a formal removal order. Given Mother’s history of mental health concerns, her denial and minimization of past and current problems, and the absence of another adult in the household available to protect Minors if necessary, the juvenile court could reasonably find that a family maintenance plan would not be sufficient to protect Minors from harm. Mother provides no authority or argument supporting her assertion that leaving Minors in Father’s care without a formal removal order (an alternative Mother did not raise below) would be sufficient to protect Minors. In contrast to In re D.P. (2020) 44 Cal.App.5th 1058, relied on by Mother, no other court order protecting Minors, such as a restraining order, was present. (Id. at p. 1064, 1069 [“given that mother had been effectively removed from the home under the restraining order” issued by a family court prior to disposition, removal from the mother’s custody was unnecessary to ensure the minor’s safe return home].)

The other cases relied on by Mother are also distinguishable. In In re Ashly F. (2014) 225 Cal.App.4th 803, following the mother’s physical abuse and the father’s failure to protect, the juvenile court removed the minors from both parents’ custody and placed them with relatives. (Id. at pp. 806–808.) The Court of Appeal found, in light of the mother’s remorse for the injuries she inflicted and enrollment in a parenting class, and the father’s completion of a parenting class, “ ‘reasonable means’ of protecting the children that should at least have been considered include unannounced visits by DCFS, public health nursing services, in-home counseling services and removing Mother from the home.” (Id. at p. 810.) In In re Henry V. (2004) 119 Cal.App.4th 522, disagreed with by In re L.O. (2021) 67 Cal.App.5th 227, 246, there was a single incident of physical abuse, the offending parent was “fully cooperative,” and there was no “indication on the record that either the court or the Agency understood the necessity of making the dispositional findings on clear and convincing evidence.” (In re Henry V., at pp. 529–530.) In In re Ma.V. (2021) 64 Cal.App.5th 11, the petition alleged domestic violence in the mother’s relationship with her boyfriend, and the mother’s marijuana abuse and post-traumatic stress disorder. (Id. at p. 14.) At disposition, the mother had ended the relationship, provided the agency with a prescription for medical marijuana, and was receiving mental health services from a psychiatrist and the Veterans Administration. (Id. at pp. 17–19.) The Court of Appeal reversed the juvenile court’s removal order in light of the mother’s progress and the fact that the maternal grandmother lived in the same apartment complex and had previously cared for the minors when the mother was deployed, so “there were reasonable means to prevent removal as Mother already had a plan in place for Grandmother to help care for the children. This plan could have been maintained and removal, which is to be a last resort, could have been avoided.” (Id. at p. 25.) These cases are all factually distinguishable from the present case.

Finally, Mother argues the juvenile court failed to set forth the facts on which the removal order was based. The juvenile court’s oral decision refers only to Mother’s “issues” as described in the arguments by the Department and Minors’ counsel, and the written order does not set forth any facts supporting the order. However, this omission does not require reversal unless “ ‘ “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” ’ ” (In re D.P., supra, 44 Cal.App.5th at p. 1068.) In light of the concerns discussed above, we find no such reasonable probability. (Cf. id. at p. 1069 [because a restraining order required the mother to stay away from the family home, “had the juvenile court reflected upon and stated the facts as required under section 361, it would have found [the minor] was reasonably protected under the restraining order, and removing him from mother’s physical custody was unnecessary to ensure his safe return home”].)

DISPOSITION

The juvenile court’s order is affirmed.

SIMONS, J.

We concur.

JACKSON, P. J.

WISEMAN, J.*

(A162065)

[1] All undesignated section references are to the Welfare and Institutions Code.

[2] The petition was subsequently amended.

[3] The Santa Barbara Department submitted the sheriff’s report for the July 14, 2020 incident, which stated Mother told law enforcement, “ ‘I’m gonna . . . hurt [the aunt]. . . . I won’t hesitate,’ ” and said she was expecting to end up in jail.

[4] See In re Pedro Z. (2010) 190 Cal.App.4th 12.

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.