Filed 3/21/22 In re P.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Los Angeles County. Kristen Byrdsong, Juvenile Court Referee. Affirmed.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

_______________________

The sole issue on appeal is whether the juvenile court’s order removing one-year-old P.H. from Mother Michelle G. is supported by substantial evidence.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Petition

On April 7, 2020, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition against Mother Michelle G. and Father Thomas D. as to their three-month-old daughter P.H. pursuant to Welfare & Institutions Code section 300, subdivisions (b)(1) (failure to protect) and (j) (abuse of sibling).[1] The petition alleged Mother has mental and emotional problems, including a diagnosis of bipolar disorder, which renders her unable to provide regular care and supervision of P.H. Mother was involuntarily hospitalized to treat her psychiatric condition. Father knew of Mother’s mental health issues and failed to protect the child by allowing Mother to have unlimited access to the child. The petition also alleged in a separate count that P.H.’s three-year-old sister Faith is a current dependent of the court due to Mother’s mental and emotional problems and Father’s failure to protect. Both counts alleged Mother’s problems and Father’s failure to protect placed P.H. at risk of serious physical harm, damage, and danger.

Four days before filing the petition, DCFS had obtained a warrant of removal and placed P.H. with maternal grandmother L.H., who also had custody of Faith. (Faith is the subject of a separate case and neither she nor Father is a party to this appeal.)

2. The Detention Report

On April 7, 2020 DCFS filed a detention report, presenting the following information. In January 2019, one year before P.H.’s birth, the juvenile court sustained a petition against Mother as to her elder daughter Faith. The sustained petition alleged Mother’s mental and emotional problems, including a diagnosis of bipolar disorder, rendered her unable to care for Faith and Father, aware of Mother’s problems, failed to protect Faith by allowing Mother to have unlimited access to her. Faith was placed with maternal grandmother L.H.

One year later and soon after P.H.’s birth in January 2020, DCFS received a referral alleging general neglect of P.H. by Mother and Father. P.H.’s emergency children’s social worker (CSW) Veronica Coss and Faith’s CSW Daniel Cruz consulted with each other. Cruz advised that Mother was not in compliance with her case plan for Faith, which included drug testing, a psychiatric evaluation, and mental health treatment. Cruz was concerned Mother might be using drugs because she had not been testing. Neither Mother nor P.H. were tested for drugs at P.H.’s birth. Mother had taken a drug test in December and tested negative.

In January 2020, two weeks after P.H.’s birth, CSW Coss met Mother at maternal grandmother’s home in Menifee. Mother explained she had not tested because the last few months of her pregnancy were “bad” and she was recuperating from a C-section. Both Mother and maternal grandmother L.H. stated Mother and P.H. were doing well, although L.H. stated mother “has a long way to go” to be truly independent with the infant. L.H. wanted DCFS to keep an eye on the situation as she believed Mother needed programs to remain sober moving
forward. CSW Coss observed P.H. to be happy and healthy. Mother was rambling and hyperactive; she stated she was having an allergic skin reaction knowing her baby might be taken away. The next day Mother called DCFS to add that she had been diagnosed with Stage 4 cancer and placed on bed rest during her pregnancy, two more reasons why she had not drug tested. Mother stated she wanted L.H. to become Faith’s legal guardian and, eventually, P.H.’s legal guardian, in light of her medical condition.

A few days later DCFS visited Mother’s home in Burbank. It had working utilities, was clean and free of clutter, and was stocked with food. Mother lived there with a roommate and paternal grandmother. Mother stated she had no contact with Father.

In February 2020 Mother’s therapist, Ellen Kovacs, Ph.D., wrote a letter confirming she had been treating Mother since November 27, 2019. She commended Mother for a positive, honest, motivated attitude about her therapy. She diagnosed Mother with Generalized Anxiety Disorder and Adjustment Disorder with mixed Anxiety and Depression in addition to dyslexia and intense anxiety. To date Mother had participated in nine therapy sessions. Dr. Kovacs asserted that Mother was a caring and devoted parent to both of her daughters who declined cancer treatment during her pregnancy so she could carry P.H. to term. She verified Mother was making excellent progress in therapy and was calmer with good insight into her mental health. Dr. Kovacs concluded that because Mother was being treated for anxiety, psychotropic medication was not warranted. She opined Mother was free of any drug or alcohol problems.

It was later discovered that Dr. Kovacs had met Mother only once in person and the therapy sessions were conducted over the telephone. Because Dr. Kovacs did not make this clear in her letter, DCFS considered her conclusions about Mother unreliable.

In late February, Mother began to complain that her efforts to comply with Faith’s case plan were “not being recognized at all.” At about the same time, L.H. advised DCFS that she had evicted Mother from her home in Burbank (L.H. owned the property). L.H. believed P.H. was not safe with mother because family members had observed people coming and going out of the house and Mother “is usually asleep all day.” Mother was also sending messages to L.H. that did not make sense, she was not visiting Faith, and she was refusing to immunize P.H.

On March 13, 2020, Mother dropped P.H. off at L.H.’s home. Speaking rapidly and not making sense, Mother said her cousin Monique had threatened to kill the child. Mother did not say when she would be returning to pick up P.H. When L.H. called to ask her when she would return, Mother yelled when she was “dam[n] well and ready.” Mother returned to pick up P.H. six days later.

On April 3, 2020, CSW Coss obtained a warrant of removal and confirmed Mother had a current and active restraining order against Father prohibiting contact between them until 2029. CSW Coss and the Burbank Police Department went to Mother’s home to remove P.H. and there they discovered Father. They removed P.H. from Mother for general neglect and noncompliance with the restraining order. Mother and Father began to scream at CSW Coss, accusing DCFS of lying and Coss of forging the judge’s signature on the removal order and kidnapping P.H. Father was repeatedly yelling at CSW Coss, “I am going to kill you” and “You are going to die,” and “You and your kids will burn in hell and I will make sure of it.”

The next day, CSW Coss received three emails from one “Monica Griego, Family Advocate.” The first stated Mother was requesting a copy of the full warrant because CSW Coss had forged the judge’s signature on the last page; the second described “rights” parents enjoy with respect to their children; the third stated Mother’s request that DCFS communicate with her by email, not by text, or face public scrutiny of DCFS communications.

Over the next few days, CSW Coss unsuccessfully attempted to communicate with Mother about visitation and pandemic protocol. On April 5, 2020, CSW Coss received a text message from L.H. indicating Mother and Father had created a false missing persons flyer that was circulating on social media. The flyer accused CSW Coss of abducting Faith and P.H. Coss also learned Mother had posted Coss’s personal information on a “hate page” on social media and placed “transcripts” of conversations between Mother and DCFS social workers, including Coss, on Facebook. Monica Griego also accused DCFS of retaliation.

C. Detention Hearing and Restraining Orders

On April 10, 2020, the juvenile court detained P.H. on the initial petition. It also issued a temporary restraining order prohibiting Father and Mother from contacting CSW Coss. The temporary restraining order was re-issued seven times – on May 8, 2020, June 9, 2020, July 21, 2020, July 27, 2020, September 30, 2020, October 5, 2020, and October 7, 2020.

Before detaining P.H., the juvenile court received last minute information from DCFS advising that Mother had sent the Riverside Sheriff to L.H.’s home to do a welfare check on the children. DCFS also advised that Mother’s roommate Travis had provided additional information about Mother’s neglect of P.H. Travis apologized for not coming forward sooner, but he felt safer doing so after he had moved out of Mother’s residence.

Travis stated that when he moved into Mother’s residence in September 2019, Mother, who was pregnant, and Father were living together. They physically fought when they were high on methamphetamine. During one fight, Mother asked for Travis’s help and Father threatened him to stay out of their business. Travis saw Mother’s paternal grandmother and grandmother’s boyfriend smoking methamphetamine at the residence as well. He saw Mother give Benadryl to P.H. so she would fall asleep and not cry. Travis moved out April 1, 2020. Father was living at the residence during Travis’s entire tenure there (despite a criminal restraining order prohibiting contact between Mother and Father). At one point Travis confronted Mother about neglecting P.H. and Mother, upset, claimed she had cancer and was studying law, things Travis knew were not true.

D. Faith’s Case

The juvenile court was also given details about Mother’s case with Faith. In July 2018, Mother was involuntarily hospitalized after she tried to kill herself with an Oxycodone pill. On September 18, 2018, DCFS detained Faith and later filed a petition against mother based on mental health, substance abuse, and domestic violence issues. The juvenile court sustained the petition based on Mother’s mental and emotional problems, including a diagnosis of bipolar disorder, removed Faith from Mother, and ordered Mother to submit to drug testing, undergo psychiatric evaluation and individual counseling, take any prescribed psychotropic medication, and participate in a domestic violence program. Mother was later psychologically evaluated pursuant to Evidence Code section 730 by Dr. Ronald Banks and diagnosed with delusional disorder persecutory type, rule out PTSD and bi-polar disorder. “Test results reveal persecutory ideation of a paranoid delusional quality, anxiety, suspiciousness and a lack of insight. Some of these symptom patterns may very well be related to PTSD, which needs to be ruled out.”

E. The First Amended Petition

Tension continued to mount since P.H.’s birth in January 2020. On April 9, 2020, L.H. advised CSW Coss that Father and Mother threatened her while they were on a Facetime call with Faith. L.H. blocked their calls and was fearful for the safety of herself and the children. On June 17, 2020, DCFS filed a first amended petition against both parents alleging P.H. was not safe because of her parents’ substance abuse and history of domestic violence. Specifically, the petition realleged that Mother has mental and emotional problems, including bipolar disorder, rendering her unable to provide regular care and supervision for P.H. and Father failed to protect P.H. by allowing Mother unlimited access to her. (Count b-1.) The petition newly alleged that Father is a current and frequent abuser of amphetamines and methamphetamines which renders him incapable of providing regular care to P.H. He was arrested on December 31, 2019 for possession of narcotics and tested positive for methamphetamines and amphetamines on November 25, 2019 and December 5, 2019. (Count b-2.) It was also alleged Mother has a history of illegal substance abused and is a frequent use of methamphetamines which renders her incapable of providing regular care to P.H. (Count b-3.) The final count recited both parents have an unresolved history of domestic violence dating back to 2016. As recently as August 11, 2019, Father strangled Mother, forcefully grabbing and verbally abusing her. Mother punched Father in self-defense and both engaged in domestic violence while Mother was pregnant with P.H. They continued to reside together notwithstanding a criminal protective order that prevented any contact between them until August 25, 2029. The petition concluded parents’ conduct endangers P.H.’s physical and emotional health and safety and places her at risk of severe physical and emotional harm and damage. P.H. was again detained on the first amended petition and she remained placed with maternal grandmother L.H.

F. Jurisdiction and Disposition

The juvenile court held the adjudication hearing in four days over 13 weeks—July 27, 2020, at which time Father pleaded no contest to the first amended petition; October 28, 2020; October 30, 2020; and November 2, 2020. The court admitted into evidence the Jurisdiction/ Disposition Report offered by DCFS. The Report repeated the information set out above and offered the following new information.

On June 5, 2020, DCFS interviewed Mother about discrepancies in her statements. Mother stated she was not taking psychotropic medication and refused to sign any releases for her mental health records. CSW Coss was also interviewed. CSW Coss related her belief that Mother and Father were living together despite the protective order (as maternal grandmother disclosed that both parents were together on a Facetime visit with the children) and that Mother was lying about her regular contact with Father. She also reiterated her concern for the parents because of their impulsivity and rage when she went to the home to detain P.H.

Maternal grandmother also provided some context. She stated that when Mother married her first husband, she was on a cocktail of medication for bipolar disorder which worked well. Mother held a job, was not violent, conversed normally, and was less defiant. Maternal grandmother stated this changed when she met Father who told her she did not need medication.

Mother’s step-father also weighed in. He confirmed seeing bruises on Mother who told him Father was beating her up. He said the most recent incident he knew about occurred a year ago. He had never seen Mother use drugs. He suspected Father was living with Mother because he “caught” Father in the house when he went to the house to retrieve great-grandmother’s property. He had also seen Father in the back yard hiding. He had been at Mother’s house when multiple people were there just staring into space as if “they were on something.”

Roommate Travis Hill confirmed he had observed Father and paternal grandmother’s boyfriend smoke methamphetamine at the house. He saw Mother “stick a straw into a vile and snort something out of it” while P.H. was in her care. Mother admitted to Travis she “liked to snort a line every once in a while.” He believed it was more than once in a while based on the way she acted. He saw Mother give Benadryl to P.H. through a baby dropper. He believed Mother did not want to hear the baby cry. He repeated he had observed domestic fights between the parents while Mother was pregnant. They continued to fight, although they both slept in the same room. Mother’s therapist, Ellen Kovacs, was also interviewed. She insisted Mother was completely open and honest about not living with Father, adding that she knew Mother better than DCFS did.

DCFS had received a letter from Ms. Dilyse Diaz about mental health services she provided to Mother. However, when DCFS contacted Ms. Diaz to ask about those services, she reported that Mother had never been a patient of hers and any letter saying so would be false. In another vein, Mother’s doctor confirmed he put her on bed rest, but also stated that bed rest just meant she was to limit unnecessary movement. It was fine, for example, to shop and to attend church. Dr. Stanford Lee reported Mother did suffer from lupus, but patients with lupus live normal lives if they take their medication. “She . . . can live a normal life.”

Maternal aunt remarked that after Faith was born, Mother did not take her medication and went back into her bipolar state, spewing nonsense, threats, and accusations. When on her medication, Mother was self-sufficient and accountable for her actions. The difference in her behavior was very apparent. Maternal aunt did not know whether the different behavior was the result of “her psyche or if she’s also using drugs.” She reported Mother and Father continued to live together after Mother’s great-grandmother, with whom they lived at the Burbank house, died in June 2019. Mother would hide Father when she knew people were coming to the house. When Faith was an infant, Mother appeared on one occasion with bruises up and down her arm and on another occasion a black eye. Mother would hide with her family when Father acted abusively. Father called her names, screamed at her, and threatened to kill her.

From April to June, visitation was proving problematic. Despite efforts to arrange a visitation schedule workable for Mother, Mother insisted she was entitled to have visits in her own home and demanded overnight visits with her children. DCFS declined to approve overnight visits because of Mother’s refusal to drug test and parents’ continued violation of the criminal restraining order.

As for drug testing, for the period January 9, 2019 and June 2, 2020, mother tested negative on five occasions between December 18, 2019 and April 24, 2020. She missed 37 other tests. Although Mother claimed bed rest required her to miss tests, she did not have a medical explanation for the missed tests before she was pregnant and after P.H.’s delivery.

The Jurisdiction/Disposition Report concluded P.H. was not safe in Mother’s home as a result of Mother’s partial compliance with services and Mother’s continued relationship with father despite a long history of domestic violence. Moreover, mother and father had “failed to report to scheduled drug testing, which inhibits the Department’s ability to make an accurate assessment as to mother and father’s sobriety.” DCFS was also concerned that Mother had submitted falsified documents, was not taking prescribed psychotropic medication in her possession, and was displaying tangential thoughts, irritability and impulsivity as evidenced by the threats she leveled at CSW Coss and maternal grandmother when P.H. was detained.

DCFS also prepared a supplemental report, filed October 1, 2020. Since July, Mother was inconsistent with her visits to P.H. and offered multiple excuses for why she did not visit. On September 23, 2020, Mother’s visitation monitor (the partner of Mother’s brother) expressed she was no longer willing to monitor Mother’s visits. Mother had not seen her daughters since July 27, 2020. The monitor stated that two weeks prior, Mother appeared unstable. Mother had asked her to lie and say Mother was regularly visiting her children. When the monitor said she would lie, Mother hung up on her. Then Mother sent bizarre messages to the monitor which she interpreted as Mother intending to commit suicide. Mother sent a message to Faith saying, “I’m sorry honey. I have to go away.” This prompted maternal grandmother to ask police to do a wellness check on Mother.

According to the monitor, Mother was also inconsistent with her video calls. On August 21, 2020, the monitor did not allow Mother to have a phone visit with the children because “mother was hysterical and all over the place.” On August 24, 2020, the monitor cancelled two video calls because Mother was acting hysterical and had sent a message to Faith saying, “Sorry I have to go away.” On August 26, 2020, the monitor curtailed a video call because Mother kept pressing Faith to say that she wanted to go to Mother’s house. Mother was also quizzing Faith on Father’s visits and calls. Mother made more “suicidal statements to Faith,” which prompted the monitor to end the call. On September 10, 2020, Mother called the monitor and stated she missed the video call because she was in the hospital with a bad liver, tachycardia, pneumonia, and fever.

On September 18, 2020, Mother asked the monitor to arrange the girls’ in-person visitation with her at Canyon Lake where she intended to meet some friends. The monitor told Mother third parties were not allowed at visits and suggested instead that they have a picnic at the park, as they had planned. The monitor offered to take the girls and Mother out to lunch. According to the monitor, Mother “flipped out” and said she could not be in the sun at the park, but she could be in the sun at the lake. Mother then asked the monitor to allow her to drive the girls to the location of the visit and the monitor could follow behind them in her own car. The monitor told her no because she felt Mother was setting it up so she could flee with the girls. That was when the monitor decided to resign.

The monitor stated she loved Mother but would not lie for her. She stated she had never seen this side of Mother: “There’s something going on, I don’t know if she’s using or if it’s her mental health. . . . She’ll go from being herself and having ranting tangents. She did another Facebook live video talking about the case, [Father] or talking about the case and me.” The monitor also bowed out because Mother had a pattern of breaking the rules and circumventing DCFS.

DCFS still had no records of Mother’s mental health consultations with two psychiatrists as Mother refused to sign releases. Mother’s allusion to suicidal ideation with Faith could not be explored effectively because DCFS had no access to Mother’s psychiatric providers. DCFS concluded the supplemental report by acknowledging Mother was in partial compliance with services but “inconsistent drug and alcohol tests as well as mother’s inconsistent in-person and virtual visits continued to be a concern for the Department. More concerning is mother’s request that her former monitor deliberately lies to the Department about these visits taking place. . . . Mother continues to request that relatives do not comply with monitored visits, mother circumvents the worker assigned to the case and contacts duty workers requesting that her visits be liberalized and in-home.” DCFS noted that maternal grandmother should not monitor visits at her home due to their conflicted relationship and maternal grandmother’s failure to properly monitor.

The adjudication hearings elicited the following relevant live testimony.

Ellen Rochman Kovacs, Ph.D.

Dr. Kovacs, a licensed clinical psychologist since 2010, has treated Mother since November 27, 2019. Mother is seen twice a week for two hours a week. Dr. Kovacs diagnosed Mother with adjustment disorder with mixed anxiety and depressed moods due to the removal of her children which has caused her to have anxiety and depression. She has a secondary diagnosis of generalized anxiety disorder and possible ADHD. Dr. Kovacs has detected no bipolar disorder, that is, no signs of severe depression or mania.

Mother’s therapeutic goals, toward which she has made progress, are to understand her early familial relationships, past trauma, and the sources of her past and present anxiety; manage her anger and regulate her emotions; handle domestic violence issues; and cope with removal of her children.

Mother has a complicated relationship with L.H., her own mother. Mother tends to feel bad about herself, mistreated, and anxious when she is near L.H., who has always told Mother she is mentally ill. Dr. Kovacs opined Mother has progressed in her therapy because she understands the sources of her anxiety better, which has reduced her anxiety, anger, and depression. Dr. Kovacs stated that diagnosing bipolar disorder in a child, as Mother was, is not appropriate. Her opinion is bolstered by the fact that Mother’s psychiatrist did not prescribe medication for bipolar disorder when he examined her. Instead he gave her medicine for ADHD and anxiety. Dr. Kovacs donated $25 to Mother’s GoFundMe campaign to finance the return of her children. She wanted to support Mother. Dr. Kovacs was unaware of the type of cancer Mother had other than her condition is related to her breast implants. Her therapy does not involve discussions about substance abuse because, according to Dr. Kovacs, mother is not currently using or abusing alcohol or drugs. The topic of domestic violence has arisen periodically only when Mother has spoken to Dr. Kovacs about certain encounters.

Michelle G.

Mother testified she had completed domestic violence classes, anger management courses, and a parenting course. She had broken off her relationship with Father and did not intend to resume it. Mother testified her own mother, L.H., was very abusive to her. Mother testified she has not used any illegal drugs since her children were born and does not have a drug problem. She testified when she learned her paternal grandmother and grandmother’s boyfriend were using drugs in her home, she confronted her grandmother about it. She also evicted her roommate Travis because he bullied her. She unwittingly let drug users into her home, but she would no longer and she currently lived alone. She explained her failure to drug test was due to her fear of the pandemic, the fact that she was on bed rest for the pregnancy, and her distrust of the testing facility that previously produced false results about her. She stated she never tested dirty when she was testing. She seamlessly articulated all she had learned about herself, her relationships, and childrearing from her completed coursework and therapy.

Mother testified she has three types of lupus, which she testified is stress induced. She denied having been diagnosed with cancer, although she believes she has cancer caused by her breast implants. She promised that if her daughters were returned to her, she would cooperate with DCFS in providing access to her home. She also promised she would participate in family preservation services, if they were provided. Mother visited P.H. at L.H.’s home which was one hour and 45 minutes from her home in Burbank. Mother denied ever threatening L.H. with whom she has a volatile relationship. She considers herself “100 percent . . . a victim” of L.H and does not want to be in a position where L.H. has authority over her.

L.H.

L.H. testified that Mother was a “really good mom” who cannot support herself. She stated Mother cannot keep a job and is either let go or quits her employment. L.H. wanted to get Mother out of the Burbank house so she could sell it and purchase property with two houses on the lot so Mother could live in the backhouse with her children while L.H. and her husband live in the front house. She also testified she bought a mobile home for Mother and the children to live in for which she intended to rent space at Canyon Lake. She took Mother at age 12 to a doctor to be mentally evaluated because Mother was very violent and would have crying and screaming fits. The doctor diagnosed bipolar disorder.

L.H. testified that since P.H. came to live with her and the stay-away order was issued by the court, she has not been in regular communication with Mother because “I don’t like drama.” Two weeks ago, instead of doing a video visit with the children, Mother arrived at her home screaming frantically, “I want to see my kids.” L.H. called the police because of the stay-away order. When the police arrived 15 minutes later, they advised L.H. that the order was merely a no-negative contact order, that is, if L.H. wanted Mother in the house, she could allow her to enter. L.H. gave Mother entry into the house; Mother visited the children; L.H. then paid for a hotel room because Mother said she intended to see the children the next day. L.H. was later admonished by DCFS that the order was, in fact, a stay-away order and she should not have allowed Mother to enter the house.

L.H. testified it concerned her that “known drug users” were living at or staying at the Burbank house when Mother was residing there. Father had sent L.H. photos of drugs set up in the house when Mother was pregnant with P.H. L.H. testified she believes Mother now “understands who not to have around the house and around her kids” so she is not worried about Faith being returned to Mother’s custody and control. L.H. stated she ensures that Faith remembers and talks about Mother, whom L.H. describes to Faith as being “sick.” She denied saying anything negative to Faith about Mother.

L.H. said she was shocked when Faith was taken away from Mother because she did not believe Mother was doing drugs. Since P.H. has been with L.H. Mother has maintained her parental role, eating with and caring for the girls. L.H. believed P.H. would now be safe with Mother because “I think she can do it.” She believed the stay-away order is unnecessary now because everyone has calmed down. L.H. explained that the “drama” she doesn’t like is Mother getting upset at remarks made by other family members; she “takes it personally.” L.H. has tried to counsel Mother to “calm down and stay away from people that she shouldn’t be around.” L.H. described her relationship with Mother as fine. She reiterated Mother and the girls were welcome to stay in the mobile home she and her husband bought for her to live in. She believed Mother could parent without her support, but “it would be hard.” L.H. concluded by saying she erred in asking for the stay-away order because with it in place, Faith cannot speak to her parents every day, which she did before the order was issued. She thinks Faith has been hurt by the order.

L.H. concluded by reminiscing that Mother was “amazing” when she was previously on medication Kaiser had prescribed for her. She held a job for six years. She stopped taking the medication when she met Father and then she lost her job.

G. The Court’s Findings

At the conclusion of the hearing, the juvenile court sustained the allegations of the interlineated first amended petition as to Mother.

The juvenile court found: “Mother in her testimony really did not take responsibility for a lot of the issues which brought this case before the court. Mother actually blamed the department as to why she and the father, although dealing with domestic violence issues, had another child because the mother’s words were ‘Well, they recommended counseling.’ So she had another child with father. [¶] She’s blamed maternal grandmother for having [P.H.] removed from her. She gave several excuses as to why she publicly made inaccurate statements about having cancer, made inaccurate public statements about not receiving notice to hearings. [¶] . . . However, what the court did find to be of significance, the court feels mother has actually learned from the services that she’s participating in. She was able to address the poor choices she’s made in the past in regards to domestic violence. She’s learned how to identify an abusive relationship. So hopefully she can avoid that in the future. [¶] . . . She’s also shown very poor judgment as recently as three weeks ago when she was banging on the door and yelling and her daughter can hear all of this, and her daughter became very upset. [¶] She gave good examples of what she’s learned through parenting in terms of reaffirming Faith’s need for security and having parents and redirecting her when she wants attention because that’s normal. . . . [¶] The court found maternal grandmother’s testimony to be very credible. While she was forthcoming when mother was making poor choices and threatening her, she was also forthcoming that mother is a good mother. She is engaged with her kids. She loves her kids. [¶] So, while the court’s concerned about mother’s failure to accept responsibility as to why this came about, the court does find that mother has learned from her services and has shown growth.”

The court declared P.H. a dependent of the court, and removed her from Father. However, the court also found there were reasonable means to protect P.H. without removal from Mother. The court identified several prerelease conditions and stayed the order for the child’s return to Mother until those conditions were in place. Those conditions included: 1) Mother must have a family partner before P.H is returned to her; 2) Mother must have family preservation in place; 3) Mother must receive a housing referral; 4) DCFS must assess the mobile home and Burbank home; 5) Mother must be evaluated by a psychiatrist; 6) DCFS must make frequent unannounced visits.

The court imposed drug testing only on reasonable suspicion and sternly admonished Mother: “And, ma’am, I’m warning you: [¶] This home-of-parent/Mother [order] is made on the condition that you comply with all of the terms that I’ve just stated. You’re to remain in contact with the Department. You are to allow them access to your home and your daughters any time they request to ensure the safety of the children. [¶] I know in the past you’ve had a problem following orders. So I’m making it really clear: [¶] If you want both your children in your custody, you are to follow all of the orders that I just stated.” The court set another hearing for May 3, 2021, stayed the home of parent order until a progress report date of December 7, 2020 so that all services could be in place, and ordered that all visitation take place at the home of maternal grandmother L.H. The court concluded with another warning to Mother: “Again, I’m warning you: [¶] Do not violate the court orders. Because, if you do that, then that shows me you don’t take this seriously and you’re really not in a position to care for these kids.” Mother answered: “Yes, ma’am.”

H. Post-Disposition Events

Less than three weeks later, on November 23, 2020, DCFS filed an ex parte application for additional orders to ensure P.H.’s safety. It asked the court to order mother to safely store her medication; identify and provide background information for any individual visiting or living in other’s home; sign all release forms so DCFS could get updates on her therapeutic progress; work with DCFS to help both girls adjust to their impending placement change; and establish a safety plan in the event Mother feels severe anxiety or panic while home alone with her daughters. On December 7, 2020, the court granted the application.

Among other things, the ex parte application reported that right after the November 2, 2020 adjudication hearing, maternal grandmother L.H. reported that Mother called her and stated she was on her way to pick up the girls and L.H. would “never see the girls again.” When DCFS called Mother to begin to arrange the conditions set out by the court for P.H.’s return, Mother hung up the phone. Mother later contacted DCFS to say she did not want to report to her current caseworker, but only to her attorneys and the court. On November 4, 2020, the date of the scheduled home assessment two days after the adjudication hearing, Mother called several times to postpone the time and then to postpone the date. When the caseworker declined to reschedule, Mother then called the Pasadena DCFS office to speak to the duty worker to reschedule the assessment (unsuccessfully). When the assessment worker arrived, there was a male at the home, Mike, who said he was a roommate who would be moving out three days later. He declined to give his last name or additional identification.

Mother disclosed she took three medications prescribed by her psychiatrist, Dr. Jenkins. Mother advised she planned to file for a restraining order against maternal grandmother because Mother was “terrified of her” and “tired” of her “trying to take all of her resources away so that she can’t reunify with her children.”

The next day, November 5, 2020, Mother reported to DCFS that she intended to apply for a restraining order against maternal grandmother and that her roommate Mike was filing against the maternal grandmother as well for emotional abuse. In a conference call with two social workers about her living situation and roommates, Mother was “not receptive, yelling and continued to interrupt” the workers while talking.

That same day, DCFS received a voicemail from Adult Protective Services (APS) in Riverside. It had received an extensive referral that maternal great-grandmother was not being cared for by maternal grandmother L.H. APS Riverside determined that the “terrible things” alleged were not true. The worker suspected Mother might be on drugs as she did not know why she would say such things.

On November 12, 2020, DCFS conducted a third home assessment. Although his belongings were gone, roommate Mike was present and when the worker asked him if he was going to frequent the home, he became visibly upset and berated the worker. He told her he had recorded their conversation, which was his right because he had a restraining order. During the visit, another male named Ryan showed up. DCFS reminded Mother all visitors to her house had to be cleared before the children could return.

In last minute information provided to the court before the December 7, 2020 progress review, DCFS reported Mother was having difficulties caring for the children during visits and she did not consistently follow the visitation schedule. DCFS reported it could not assess Mother’s mental health condition because she declined to sign releases. It also reported that she appeared to be under the influence of a substance during a period where she slept 18 hours straight. DCFS recommended that the court order visitation only at L.H.’s home and postpone the children’s return until Mother submitted to drug and alcohol testing.

1. The First Progress Review

On December 7, 2020, the first progress review, the court was informed Mother had locked away the medication, signed releases for her medical records, and consulted with her psychiatrist as to her medications. In addition the eviction was no longer an issue and Mother was secure in her residence in Burbank. Mother confirmed that Mike and Ryan, who declined to consent to background checks, would not be permitted in the children’s lives. Minor’s counsel advised the court that the two males have been at the residence when DCFS shows up for unannounced visits and neither they nor Mother have explained why and how often they are at the house.

The court addressed Mother directly: “I’m a little disappointed by what I’ve read in the report because I thought I was abundantly clear with you that release of your children—I do believe that you’ve made progress. I do believe that you want to work to have your children returned to you. [¶] But I told you, you have to cooperate with the Department. They have been ordered by this court to make frequent, unannounced home visits. So your sarcasm and your remarks and hanging up on them . . . and making up all these excuses and contradicting yourself is going to make it harder for this court to believe that you are going to follow this court’s orders and make it harder for the children to be in your care full-time. [¶] I am going to order you yet again— and I’m not going to do this again. This is the last time I’m going to lay out these orders—if you’re not in a hundred percent compliance, then the children are going to remain where they are.” After telling Mother that it was imperative that she cooperate with the social workers and answer their questions, the court went over the orders one more time: “You’re ordered to store all medications in a way that they are locked away from the children so that the children do not have access to any medications. [¶] You are to provide the department a list with the full contact information and background information for the individuals that will be frequenting your home, including Ryan and Mike, so the Department can clear them. The court does not feel that you’ve been forthcoming or honest that they’re not going to be present. Yet every time the Department’s making unannounced home visits, they are there or they have items there or they were previously living there. [¶] You’re to sign all release forms . . . , so the Department can obtain detailed information as to your treatment, diagnosis and medications to ensure that you are taking them safely and as recommended. [¶] Once you have consulted with your psychiatrist about possibly modifying your medications in order to treat anxiety, please inform the Department of this so the Department can confirm this information with a psychiatrist. [¶] You’re to work constructively, as I believe I’ve laid out as clearly as I can, with the Department and maternal grandmother to allow gradual time for the girls to adjust to the change of no longer being with maternal grandmother but being in your home. [¶] You’re to work with the Department and maternal grandmother in order to take into account the girls’ daily schedules, maternal grandmother’s schedule and your schedule, but you’re to provide a safety plan . . . when the children are visiting and residing, if mother is feeling overwhelmed with anxiety or panic, what her plan will be.”

In light of Mother’s noncompliance with the court’s orders, the court denied her request to increase visitation to four days a week. The court ordered DCFS to assess the possibility of reassigning the case to a social worker in the Van Nuys office, as Mother had requested. Based on last minute information submitted by DCFS, the court also ordered Mother to drug test the next day and not to be the monitor for Father’s visits and telephone calls. The court also ordered visitation to be a maternal grandmother’s home, expressing concern that “multiple people have reported that Mother has glossy eyes, Mother appears to be under the influence, Mother slept straight for 18 hours, and Mother gives multiple reasons and excuses why she can’t test.” The court set another progress review on January 13, 2021.

J. The Second Progress Review

On January 13, 2021, the court held another progress review to assess Mother’s compliance with its orders. In preparation for the hearing, the court reviewed last minute information submitted by DCFS. DCFS advised the court that eviction proceedings from the Burbank home were, in fact, moving forward. DCFS had not been able to assess Mother’s sobriety because not enough drug tests had taken place (there were two negative tests on December 8, 2020 and January 4, 2021 and two missed tests). Mother stated she missed the two other tests because she was recovering from major surgery. DCFS also disclosed continued reports that Mother was in contact with Father despite the current restraining order and her reports denying such contact. DCFS also felt Mother was not entirely honest about who was frequenting her home and not enough visits had occurred to assess whether she was ready to take custody of P.H. and Faith. Minor’s counsel asked that reunification services be terminated given Mother’s lack of full compliance with the court’s orders and her myriad excuses for noncompliance.

The court received into evidence Mother’s exhibits which showed partial compliance with some of the court’s orders. The court found material grandmother credible. As for Mother, the court stated it “can’t believe anything that she says because she repeatedly tells lie after lie, after lie in this court’s opinion.” “The court doesn’t find mother credible in the least. . . . [¶] It’s been reported that mother is in contact with father . . . . It’s been reported she’s calling father’s phone. . . . [¶] She allowed him to FaceTime on her phone during one of the visits. . . . [¶] Mother’s very duplicitous. She always contradicts herself. It’s been reported she’s under— what’s been described is— illegal substances when she slept for almost 18 hours straight and was seen frequenting the home of a drug dealer. [¶] [Mother] has excuse after excuse as to why she cannot test. She has not been forthcoming with the Department about who’s coming in her house and who’s not and who’s visiting and who’s not living there.

The court determined that Mother had not made “substantial” progress in her case plan. It rescinded its home of parent order, removed P.H. from Mother’s custody, awarded Mother reunification services, and set a twelve-month review hearing. The court stated: “The court finds by clear and convincing evidence the minor remaining in the home of parents would pose substantial danger to the minor’s physical health, safety, protection, physical and emotional well-being. [¶] The Department has repeatedly provided reasonable means to prevent removal. The court has provided Mother with numerous opportunities for her to have her children in her care. The court has admonished mother on multiple occasions, and she’s failed to comply with court orders. [¶]The court does not find reasonable means exist.” The court repeated its earlier findings declaring P.H. a dependent of the court and vesting care, custody and control of P.H. with the Department. The court ordered reunification services and a case plan including drug testing, parenting class, domestic counseling, individual counseling, a 730 evaluation, Department access to all medical records and compliance with all prescribed medication. The court set the next date for July 13, 2021.

This appeal followed.

DISCUSSION

Mother argues P.H. was never in substantial danger so removal was inappropriate. Next she argues the court did not make removal findings at the November 2, 2020 adjudication hearing and the only changed circumstance was Mother’s lack of full compliance with her case plan, which was not enough to warrant removal. Finally, Mother contends reasonable means short of removal exist to protect P.H. while in Mother’s custody.

1. Standard of Review

A removal order is reviewed for substantial evidence. (In re Hailey T. (2012) 212 Cal.App.4th 139, 146.) “When 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.)

B. Substantial Evidence Supports the Removal Order

Mother’s first two arguments go to whether there is substantial evidence to support the removal order. Children may not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child’s physical health, safety, protection or physical or emotional well-being and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Jasmine G. (2000) 82 Cal.App.4th 282, 288; In re D.D. (2019) 32 Cal.App.5th 985, 996–997.) The statute “ ‘embodies “an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parent’s homes where it is safe to do so.” ’ ” Removal from parental custody is only justified when there is clear and convincing evidence of an extreme case of abuse or neglect, parental inability to provide proper care for the minor, and potential detriment to the minor if he or she remains with the parent. (In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re D.D., at p. 996.) Removal cannot be based solely on past abuse; it requires an “ongoing or future danger” to the child. (In re A.E. (2014) 228 Cal.App.4th 820, 826.)

Nevertheless, section 361, subdivision (c)(1) authorizes the juvenile court to remove an endangered child before they are abused. (In re V.L. (2020) 54 Cal.App.5th 147, 154 [“Actual harm to a child is not necessary before a child can be removed. ‘Reasonable apprehension stands as an accepted basis for the exercise of state power.’ ”].) “A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] ‘The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.’ [Citation.] The court may consider a parent’s past conduct as well as present circumstances.” (In re N.M. (2011) 197 Cal.App.4th 159, 169–170.)

Applying this standard, we conclude the evidence was sufficient to support the court’s order of removal.

What began as a case of general neglect which required Mother to address her mental health and domestic violence issues, attend classes, and submit to drug testing to regain custody of P.H. turned into a battle, for all intents and purposes, between Mother and the world around her. As set out above, the conditions that led to P.H.’s dependency were Mother’s unpredictable and volatile behavior which was attributed to mental illness; the domestic violence between Mother and Father; and Mother’s drug use. A finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care to children of tender years, resulting in a substantial risk of physical harm. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219; In re Rocco M. (1991) 1 Cal.App.4th 814, 824, disapproved on other grounds in In re R.T. (2017) 3 Cal.5th 622, 629-630 [with infants, even a moment of inattention can have disastrous consequences].) These factors contributed to Mother’s instability, unreliability, and unavailability as a parent, rendering it unsafe for infant P.H. to be under Mother’s custody and control. Mother took no personal responsibility for the conditions that led to P.H.’s dependency, blaming maternal grandmother, Father, and DCFS. “One cannot correct a problem one fails to acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)

By the time the court rescinded the home of parent order and ordered P.H. removed, nine months had passed from the date P.H. was initially detained and placed with her maternal grandmother. In those nine months, Father pleaded no contest to the petition and effectively disappeared from the picture. Mother, already in a case plan for her elder daughter Faith, proffered excuse after excuse as to why she could not comply with the plans created for her two daughters. While Mother was commendably able to complete some educational courses, she could not or would not consistently drug test or consistently visit her daughters. She continued to live with and then have contact with Father despite the court order prohibiting contact between them. She dropped off P.H. with maternal grandmother and disappeared for six days without explanation. She was seen drugging P.H. to keep her quiet. She asked people to lie for her to make it appear she was a consistently attentive parent. She opened her home to drug users at all hours of the day and night. She missed over 30 drug tests and was unwilling to allow DCFS to access her mental health records to assess her progress. She denied using any sort of illegal substance since Faith’s birth, despite at least one instance of sleeping for 18 hours straight, multiple observations by DCFS and friends that she appeared to be under the influence of some substance, and testimony by a roommate that she admitted to and did use illegal drugs. She badgered and threatened her daughters’ caregiver and the DCFS social workers who tried to assist her, ranting one minute and promising to cooperate the next.

Relying only on the events which occurred before the November 2, 2020 adjudication hearing concluded, the juvenile court would have been justified in removing P.H. on that date. Just because the court initially thought P.H. could be safe with Mother under certain conditions does not erase the past history of unreliable and unsafe parenting that Mother had promised and then failed to rectify. The juvenile court acted prudently in changing its mind as to Mother’s ability to parent responsibly when it learned of what had transpired in the two months after adjudication and the initial disposition order.

Immediately after the hearing, Mother showed herself to be an erratic visitor to her children and seemingly incapable of following through on the promises she made to the court at adjudication, promises which, no doubt, prompted the court in the first place to afford her an opportunity to prove herself. The juvenile court’s remarks at the adjudication hearing display a compassionate understanding of how much Mother wanted to be reunited with her children, but they also revealed the depth of the court’s concern for the safety of P.H. and her sister who were of tender years and completely reliant on their adult caretakers for safety and security. The juvenile court was, perhaps, too optimistic that Mother could carry through on her promises to parent cooperatively with DCFS and otherwise comply with the conditions it set for return of the children. Ultimately, however, the court had to focus on the best interests of P.H., not on Mother’s plight. The court’s position was transparent in that regard from day one.

Mother’s nine months of erratic, unreliable, and duplicitous behavior, coupled with her flagrant disregard of the judicial stay-away order to protect the children from witnessing more domestic violence and her seeming disrespect for the conditions imposed by the court constituted substantial evidence supporting the removal order.

3. No Reasonable Means Short of Removal Existed to Protect P.H.

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., supra, 212 Cal.App.4th at p. 148.) Removal on any ground not involving parental rejection, abandonment, or institutionalization requires a finding there are no reasonable means of protecting the child without depriving the parent of custody. (§ 361, subd (c)(1); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.) The juvenile court must “make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . . The court shall state the facts on which the decision to remove the minor is based.” (§ 361, subd. (e).)

As shown above, the juvenile court bent over backward to assist Mother in regaining custody of P.H. The court overlooked Mother’s initial inability (or unwillingness) to comply with specific, standard conditions and gave her several opportunities to follow through on the promises she made in her testimony to cooperate and follow court orders. Her own mother L.H. gave favorable testimony which apparently helped convince the court to impose conditions short of removal to resolve P.H.’s custody situation. Yet Mother continued to shoot herself in the foot by immediately failing to cooperate and do what was ordered to ensure P.H.’s health and safety. She remained volatile, unpredictable, and, consequently, an unreliable and unsafe caretaker for the infant. Whether Mother was unwilling or unable to comply is immaterial; the juvenile court rightfully focused on P.H.’s health and safety.

The juvenile court tried the approach of “less drastic” alternatives; it did not work. Mother did not embrace the less drastic solutions that the court imposed. Because of that, removal was the only and last resort to protect P.H. DCFS carried its burden to show that at the time of disposition on January 13, 2021, there were no reasonable means of protecting P.H.’s safety short of removing her from Mother. To argue that the court acted prematurely is untenable.

We also note that Mother’s contention that P.H. was detained only because Mother did not get along with DCFS is yet another example of Mother failing to take responsibility for her conduct. Mother’s comment that her behavior warranted at best a “delay” in P.H.’s return home is also another example of Mother focusing only on herself. As a one-year-old, P.H. required a consistent and reliable caregiver as soon as possible in her young life to mitigate the distress and trauma of an unsafe and emotionally chaotic upbringing. It was unfair to P.H. to expect her to wait in limbo until Mother pulled it together.

That Mother may be a “good mom” is not the issue: the issue is that she could not be trusted to be a reliable good mom who would put the safety of her infant first. The record could not be more clear.

DISPOSITION

The removal order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.

[1] Further statutory references are to the Welfare & Institutions Code.