Filed 2/16/21 In re N.T. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from findings and order of the Superior Court of Los Angeles County, Martha A. Matthews, Judge. Affirmed.

Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant, Stephanie P.

Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant, S.T.

Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.

______________________________________

INTRODUCTION

Mother and Father contend the evidence is insufficient to support the juvenile court’s order removing their three children from Father’s custody. Neither parent proffers argument challenging the jurisdictional findings as to both parents or the dispositional order removing the children from Mother.

We conclude substantial evidence supports the juvenile court’s removal order and affirm.

FACTUAL AND PROCEDURAL BACKGROUND[1]

1. Events Leading to Filing of Petition

Stephanie P. (Mother) and S.T. (Father) have three minor children: N.T. (born November 2015), I.T. (born January 2017), and J.T. (born August 2018).

On August 12, 2019, the Los Angeles County Department of Children and Family Services (DCFS) received an “Emergency Response Referral” alleging the children are “victims of Emotional Abuse and General Neglect” by Mother and Father. The reporting party alleged Mother was paranoid, displayed “erratic behavior,” and made odd claims (i.e., a rabbi was spying on her, people were trying to harm her children, and Father was having an affair with the reporting party’s colleague). The children were no longer attending daycare, as Mother wanted to “isolate” them. The reporting party expressed concern that the children are being “traumatized” by Mother; they appeared “disheveled” and malnourished. It was alleged Mother was diagnosed with various disorders but refused to take medication. As for Father, it was alleged he “has not taken any responsibility for the care of the children” despite residing in the same home.

The next day, a DCFS social worker (CSW) learned from Dr. D, Mother’s psychiatrist of two and one-half years, that Mother was diagnosed with anxiety and psychotic disorder, and was not taking her prescribed medication. Dr. D reported having seen Mother and the children the previous day, and was “really concerned about the children’s well-being.” Mother seemed “distant and detached” from the children, who were “disheveled” and appeared malnourished. Dr. D tried to have Mother transported to the hospital for a psychiatric evaluation, but she refused.

The CSW visited the family home. When the CSW announced herself at the door, a woman yelled she was going to call the police. The CSW heard children at the door. The woman refused to open the door. The CSW left and returned later that day. Father answered the door; Mother and the children were not at home. The home was dirty and disorganized, with toys “all over the floor.” There was water and food spilled on the kitchen and living room floors.

Father said Mother acted “paranoid lately.” She accused him of cheating and lying, accused the paternal family of “secretly taking the children to get vaccinated,” and took the children out of daycare “for no reason.” Father stated although they live in the same house, they do not speak to one another and sleep in different bedrooms. He stated he was diagnosed with bipolar disorder and took psychotropic medications.

On August 15, 2019, Father called the Child Protection Hotline and reported that Mother had taken the children to a hotel without his permission. He stated he was concerned for the children’s welfare.

On August 22, 2019, the CSW went to the children’s home unannounced. Mother was home with the children, all of whom were wearing only diapers. The home was “disorganized.” The children were jumping on top of the furniture, fighting, and crying for Mother’s attention, who appeared “disheveled” and “very overwhelmed.” The children had oily hair and dirty hands and feet. Mother stated she was “confused” why DCFS was involved because the children “are doing well.” She did not plan to return the children to daycare because she thought someone there “was maybe hurting them.”

Mother stated she previously spoke to a social worker, who asked her if she had four children. Mother said this “confused” her, gave her “doubts about [N.T.] being her daughter,” and asked DCFS several times to conduct a DNA test to confirm N.T. was her child.

On August 27, 2019, the CSW received a phone call from Dr. B., Father’s psychiatrist, who stated Father was “not compliant” with his psychotherapy and prescriptions for his recurring bipolar disorder. Father had not had a session for the past five months.

On August 29, 2019, Father told the CSW he wanted to be “honest” and stated he was “not able to care for the children by himself.” If the children were removed from Mother, Father said he would consent to their removal from his care and would like them placed with a Jewish family. Father then reported that an officer woke him up at midnight the previous night and informed him that the police had found Mother and the children walking down the street. Father stated he was not aware Mother had left with the children. It was reported that Father was “scared [Mother] will go to prison if he tells the police too much, so he is minimizing his concern when they ask.” He stated again he did not feel able to handle the children on his own, but agreed Mother was “not stable to care for the children herself.”

On September 4, 2019, DCFS learned Mother continued to isolate the children. She reportedly woke up at night, claimed people were breaking into the house, and called the police; this happened three times during that week. DCFS further learned Mother had missed two appointments with Dr. D. within the last few weeks, and remained steadfast in her refusal to take her prescribed medication. Father asked the CSW “to please come help him talk to mother about his concern for her mental health.”

The next day, the CSW visited the family home and found the children jumping on the furniture. The children appeared unbathed with dirty hands and feet. N.T. was wearing a dress with no underwear. The home appeared disorganized, dirty, with spilled water and food all over the floor.

The CSW, together with a psychiatric mobile response team from the Department of Mental Health, spent three and one-half hours trying to convince Mother to seek emergency psychiatric treatment. Mother and Father signed a safety plan and agreed that Mother would go to the hospital the following day for a psychiatric evaluation. The next day, Father texted the CSW indicating Mother had not gone to the hospital.

On September 10, 2019, nearly one month after the first call to DCFS, the children were removed from both parents’ care and placed in protective custody.

2. Petition and Detention

Two days later, on September 12, 2019, DCFS filed a Welfare and Institutions Code[2] section 300 petition on behalf of N.T., I.T., and J.T. The petition alleged both Father and Mother had untreated “mental and emotional problems” which rendered them unable to provide regular care for the children. In addition, it was alleged Father was unwilling and unable to protect his children from physical harm and danger posed by Mother’s untreated mental and emotional problems and her agitated and erratic behaviors.

At the September 13, 2019 detention hearing, the juvenile court found a prima facie case for detention and ordered the children removed from their parents. With Father’s consent, the court ordered the children to receive age-appropriate immunizations. The court ordered monitored visits for Father.

On October 25, 2019, Mother first appeared before the court, at which time she requested the children be released to her. The court declined to do so and ordered monitored visits for Mother.

3. DCFS’s Continued Investigations

DCFS met with both parents at their home. Father stated he believed Mother could use “some help such as counseling and in-home support care.” He believed Mother’s disorders interfered with her ability to supervise the children and “can be managed” with psychotropic medication, but Mother is “legally entitled to make the choice of whether to take the medication.”

As for his mental health, Father reported he was diagnosed with depressive disorder in 2007 or 2008. He was diagnosed with a mood disorder in 2012, and with bipolar disorder in 2015. He admitted he was not in compliance with his psychotropic medication at the time the children were removed; however, since September 2019, he had met with Dr. B and “resumed his compliance with the psychotropic medication regimen.”

Father told the CSW that while he was unable (but “not unwilling”) to be the children’s sole custodian at the time they were removed, his “circumstances have changed” since then; he now believed he could be the children’s custodian so long as they were in daycare and he had help and support from extended family.

Mother asserted she does not have mental or emotional problems; she did not know “why anyone would think that she suffers” from paranoia or psychotic disorder. She disputed Dr. D’s qualifications to diagnose her and incorrectly claimed Dr. D is not a psychiatrist. Mother said Father “is not involved” in the children’s care as he “leaves in the morning and does not return home until late at night.”

4. Issues with Parents’ Visitation

DCFS observed many issues during Mother’s and Father’s visits with the children over the next few months. During one visit, Mother appeared to have “difficulty setting structure and limits for the children” and struggled with meeting their basic needs, such as changing their diapers and wiping their noses. Mother “would not have even recognized that the diapers needed to be changed” if she was not alerted to the issue. During another visit, Mother yelled, called the monitor “dirty,” and accused the monitor of calling her a “bad mother.” Mother’s “volatile behavior” was “triggered for no reason.” She again struggled to change the children’s diapers. At another visit, Mother wept in the presence of I.T. and yelled about the children being detained; I.T. “was affected by” Mother’s emotional reaction.

When a visit in the park ended, Mother held J.T. in her arms and “refused to hand him over to the CSW.” Father attempted to encourage Mother to release J.T. to the CSW, but Mother refused and said, “go ahead and call the police.” N.T. began to cry. Police officers arrived and “successfully got mother to release the children.” Father was described as “passive . . . in the midst of a crisis.” He expressed having “no way of redirecting mother or taking control of situations.”

During the parties’ monitored visit at a DCFS office, Mother placed N.T. on her lap and whispered “if you want to come home[,] scream loud and say I want to go home with my mommy.” The CSW attempted to redirect Mother, to which Mother yelled, “you shut your mouth.” N.T. trembled in fear as Mother held her tight, on her lap. The visit was terminated.

About 10 minutes into the parents’ November 13, 2019 visit, all the clothes, toothbrushes, water, granola, and fruit bars that Mother brought for the children “were scattered all over the floor” by the children “without control from the parents.” The children stepped on the food particles and put the toothbrushes from the floor into their mouths; neither parent intervened. Mother stormed out of the room at some point, and returned 25 minutes later. Father “mostly sat on the floor almost motionless” and stared toward the children. He had almost no eye contact with his children or with the CSW. He mumbled “once in a while,” and resumed a “rocking meditating posture.” Neither parent checked nor changed the children’s diapers during the two-hour visit; they did not ask if J.T. was hungry, even though he had not eaten. At some point, Mother “unbuckled” J.T. from the stroller and “snatched” him out, announcing she was taking the children home today. I.T. tried to flee the room. Two security officers intervened and were able to “secure the scene.”

During Father’s November 15, 2019 visit, he allowed the children to throw toys, Legos, and games on the floor without making an effort to redirect them. He mostly sat on the floor in a rocking motion. He remained silent and made no eye contact with the children. He did not check their diapers and did not inquire whether they were hungry, thirsty, or sleepy.

While visiting for N.T.’s birthday on November 18, 2019, Mother brought a pack of cupcakes and cheesecake. With one exception, Father said nothing to N.T. during the entire visit. Mother suddenly grabbed N.T. and squeezed her in her arms, telling the CSW that the children wanted to go home. Mother cried “hysterically” and said the children were “stolen from her.” She grabbed N.T.’s hand and tried to walk away. When Mother released N.T.’s hand, N.T. ran to the CSW and appeared “overwhelmed.”

5. Ex Parte Application

On November 19, 2019, after two months of observation and investigation as set out above, DCFS filed an ex parte application requesting that the court suspend visits for Mother, effective immediately, and reduce Father’s monitored visits from three times to two times a week. After hearing argument from all counsel, the court granted DCFS’s request.

6. Adjudication

In anticipation of adjudication, DCFS submitted a report and last minute information report to update the juvenile court. Mother and Father had enrolled in parenting classes. Mother attended four therapy sessions; she was not taking psychotropic medication. Father stated he was compliant with his prescribed medication. The visitation monitor expressed to the CSW that she had “been working with father on how to engage the children during visits and that he has been receptive”; the monitor reported she saw Father’s level of engagement with the children improve. Meanwhile, the children have “thrived in out of home care.”

At the jurisdictional and dispositional hearing on January 8, 2020, the court struck (as unsupported by the evidence) the allegation that Father was “unwilling” to care for the children, but otherwise sustained the petition. The juvenile court declared the children dependents of the court, and found by clear and convincing evidence that removal of the children from Mother and Father was reasonable and necessary.

The court found the children would be at risk if left in the custody of Father. Father “ha[d] not taken action to intervene or protect the children from Mother’s very extreme behaviors” which showed “a fairly deep level of denial about the severity of Mother’s mental health issues and the impact” on the children. The court found Father’s “completely passive” behavior during visits and noted Father sat on the floor, rocking, “in the middle of a visit with three small children who are running around and putting things in their mouths.” The court believed the children need a present and active parent, but Father “hasn’t shown any ability to engage in the constant active alert supervision that is necessary to actually care for three small children.” While the court noted the monitor indicated Father “is starting to be more engaged with the children,” it did not think the children would be “physically safe” with Father until he was able to more actively supervise and understand their developmental needs.

The court ordered family reunification services and a 730 evaluation for both parents. The court ordered monitored visitation for Father in a DCFS-approved setting, and gave DCFS discretion to liberalize. Mother’s monitored visits were to recommence upon confirmation that Mother “engaged in therapy or other mental health treatment.” DCFS was ordered to terminate any visit with Mother if she exhibited “inappropriate behavior.”

Mother and Father each filed their own notice of appeal challenging the court’s jurisdictional findings and dispositional order.

DISCUSSION

We preliminarily note the following.

Mother and Father both indicated in their notices of appeal that they are appealing from both the jurisdictional findings and dispositional removal order. However, in their briefing neither party actually challenged the jurisdictional findings as to either parent or the removal order as to Mother. For instance, while Mother states in her opening brief that she “challenges the juvenile court’s jurisdictional findings and disposition orders made on January 8, 2020,” she also writes “[n]either parent challenges the court’s jurisdictional findings.” Because both appellants presented no argument about the jurisdictional findings, we treat those contentions as waived. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 729, fn. 1; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [the absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived].)

We proceed with our review of the parents’ challenges to the juvenile court’s order removing N.T., I.T., and J.T. from Father’s custody.

1. Applicable Law and Standard of Review

Section 361, subdivision (c) authorizes the juvenile court to remove a child from the physical custody of the parent if the court finds clear and convincing evidence there is or would be “a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor” if returned home, and that there are no reasonable means of protecting the minor’s physical health without removal from parent’s physical custody. (§ 361, subd. (c)(1).)

A child need not actually be physically harmed before removal is appropriate; our goal is to avert any harm befalling the minor children. (In re N.M. (2011) 197 Cal.App.4th 159, 169–170.)

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 (V.L.).) Substantial evidence is evidence that is “ ‘reasonable in nature, credible, and of solid value.” (Ibid.) As recently set forth by our Supreme Court, “[w]hen reviewing a finding that a fact has been proved 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. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011–1012 (O.B.).)[3]

2. Analysis

Both parents argue substantial evidence does not support the court’s order removing the children from Father’s custody because reasonable services were available, short of removal, that would have allowed the children to remain safely in Father’s custody and care.

Specifically, Father argues the “concerns raised by the court were a product of the unnatural visitation process” as a DCFS office is “tooled for adult working professionals, not boisterous toddlers.” Although the juvenile court was concerned the children could injure themselves by jumping off furniture, Father contends “caselaw suggests it is better to remove such furniture from the family home than the children themselves. And DCFS can play a constructive role in helping parents with the process of child-proofing the home.”

Father’s argument completely misses the mark. The court’s stated concerns about Father’s passivity and inability to provide active and alert supervision and attention to the children’s developmental needs cannot be alleviated or mitigated by merely removing furniture from the children’s environment. The environment was not the issue. The juvenile court did not even refer to the “disorganized” and “disheveled” state of the parents’ home. Rather, the issue was the manner in which Father reacted—or rather, did not react—in response to his children throwing food and running around on dirty floors, and in response to Mother’s ongoing mental health issues and frightening outbursts during visits.

The record is replete with evidence demonstrating that Father was unable to provide appropriate care for the children and protect them from Mother’s erratic and volatile behavior, necessitating removal.

When DCFS received the referral and launched an investigation, Father indicated he was aware that Mother’s paranoia had worsened within the last few months; he indicated he was aware that Mother isolated the children, removed them from daycare, claimed people were spying on her and/or trying to hurt the children, and was not taking her psychotropic medication, which he admitted interfered with her ability to parent and care for the children. The children were visibly messy, dirty, and malnourished. Father woke up at midnight one night to the police telling him they found Mother roaming the streets with the children.

Yet despite all of this, Father had not intervened and admitted having “no way of redirecting mother or taking control of situations.” At some point, he absolved himself of responsibility by telling the CSW that Mother is “legally entitled to make the choice of whether to take the medication.” Father’s passivity and failure to realize that Mother’s untreated mental and emotional problems placed the children at risk of harm demonstrates Father’s inability to provide proper care and supervision.

Additionally, Father himself told the CSW on multiple occasions that he was unable to care for the children without assistance from others and without daycare; in fact, Father’s passive conduct during visits—both with or without Mother—demonstrated just that. During visits, Father never checked the children’s diapers, never asked them if they were hungry or sleepy. In response to the children eating food off the floor, Father did not display that parental instinct to redirect the children and remove the dirty food from around them. For the most part, Father avoided eye contact with the children, remained silent, and sat on the floor, rocking back and forth. When Mother chaotically refused to let go of the children, Father failed to intervene. But for one instance at the park, he did not even attempt to help the CSW restore order and end the visits peacefully. Father argues his sins were ones of “omission” rather than “commission.” That is a distinction without a difference when it comes to supervising three children under the age of five.

Courts have recognized “less drastic alternatives to removal may be available in a given case including returning a minor to parental custody under stringent conditions of supervision by the agency such as unannounced visits.” (In re Hailey T. (2012) 212 Cal.App.4th 139, 148.) We conclude, however, that is not the case here. Further, both parents fail to specify exactly what reasonable alternatives could have obviated removal (other than Father’s suggestion to remove the furniture, which we have already found is not the solution for this case). In this case, more stringent supervision or unannounced DCFS visits would not have alleviated the court’s ongoing concerns about Father’s ability to care for the children. DCFS carried its burden to show that at the time of disposition, there were no reasonable means of protecting the children’s health and safety without removing them from Father.

In this regard, Father’s reliance on In re Jeannette S. (1979) 94 Cal.App.3d 52 and In re Paul E. (1995) 39 Cal.App.4th 996 is unavailing. In both cases, the factual allegations and the consequences to the children were not nearly as serious as here. In re Jeanette S. involved allegations of filth and clutter exacerbated by animal feces and numerous pets inside mother’s home. (In re Jeannette S., at p. 56.) The child Jeanette S., however, appeared neither malnourished nor traumatized by her environment. (Id. at pp. 56–57.) The court of appeal faulted the trial court for not trying reasonable alternatives: stringent supervision of the environment by DCFS or, placement of the child with her father in his separate residence. (Id. at pp. 60–61.)

Similarly, in In re Paul E., the complaint against the parents was chronic messiness in housekeeping, including specific safety hazards, which the parents fixed within eight days. (In re Paul E., supra, 39 Cal.App.4th. at pp. 999–1000.) The child Paul E. had neither been abused nor neglected by his parents emotionally or physically; indeed they doted on him. (Id. at p. 999.) Nonetheless, he was removed from his parents based on chronic messiness that did not result in illness or accident to the child. (Id. at p. 1005.) In reversing the removal order, the court of appeal commented that county social service agencies cannot cast themselves in the role of “super-OSHA for families.” (Ibid.)

Here, the trial court’s main concern was not the physical messiness and disorganization of the home; instead, the court was concerned about both parents’ inability to alertly supervise their children and protect them from harm. Moreover, unlike Jeannette S. and Paul E., these children were traumatized and frightened by their mother’s outbursts and refusals to release them after visitation—behavior countenanced by Father’s inability to step up and stop the physical chaos, emotional fear, and psychic insecurity Mother created. Based on the record, and taking into account the clear and convincing burden of proof required for removal (see O.B., supra, 9 Cal.5th at p. 1005), we conclude substantial evidence supports the juvenile court’s order removing the children from Father’s custody.

Accordingly, we affirm.

DISPOSITION

The juvenile court’s January 8, 2020 findings and order are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

WILEY, J.

[1] We note the children’s last names and initials were not consistent throughout the pleadings and documents provided in the record. We refer to the children by the correct initials of their first and last names (N.T., I.T., and J.T.), as set forth on their birth certificates.

[2] All statutory references are to the Welfare and Institutions Code, unless otherwise stated.

[3] While O.B. is a conservatorship case, it is controlling in dependency cases. (V.L., supra, 54 Cal.App.5th at p. 155.)