Filed 3/24/22 In re A.G. CA2/3

not to be published in the official reports

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEALS from orders of the Superior Court of Los Angeles County, Hernan D. Vera, Judge. Reversed.

Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Jane E. Kwon, Deputy County Counsel, for Plaintiff and Respondent.

_______________________________________

INTRODUCTION

In this juvenile dependency case, the court found jurisdiction over A.B.’s (mother) two young children, Angel and Angelina (the minors), under Welfare and Institutions Code section 300, subdivisions (b) and (j).[1] The allegations related mainly to mother’s abuse of methamphetamine and her failure to reunify with her three older children due to her drug use. One allegation related to two instances of domestic violence between mother and her male companion while they were using methamphetamine. The court later ordered both minors removed from mother based solely on the domestic violence allegation and she challenges those orders here.

Prior to the dispositional hearing, mother successfully completed a four-month inpatient drug rehabilitation program, a six-month outpatient program, and participated in numerous classes, group sessions, and individual counseling. She also tested negative for all substances for approximately one year. Both she and her male companion took courses dealing with domestic violence and she also took an anger management class. In short, mother consistently and successfully addressed the Department of Children and Family Services’ (Department) and the court’s concerns.

We conclude the Department failed to demonstrate, by clear and convincing evidence, that the minors would be at a substantial risk of harm due to domestic violence if released to mother. We also conclude the evidence does not establish that there were no “reasonable means” to protect the minors other than removing them from mother. (§ 361, subd. (c)(1).) Accordingly, we reverse the removal orders.

factS AND PROCEDURAL background

1. Background

These proceedings concern two of mother’s five children, Angel (now three and one-half years old) and Angelina (now two years old). During most of these proceedings, Angel’s father (Gomez) and Angelina’s father (Quintero) were incarcerated.[2]

Mother has three older children with her ex-husband (Hernandez). Mother has an extensive, documented history of drug abuse. Her drug of choice is methamphetamine. She began using in 2015 and used on a near-daily basis until she entered a drug rehabilitation program during these proceedings. In a prior dependency proceeding, the court sustained two jurisdictional allegations regarding mother, one regarding her drug use and resultant inability to care for the Hernandez children, and the other regarding her failure to make an appropriate plan for their care in her absence.[3] Although mother was apparently in compliance with her case plan, she failed to reunify with those children. Those proceedings terminated in February 2017 and Hernandez now has full legal and physical custody of those three children.

2. Fall 2019: Petition Regarding Angel

The Department became involved with Angel in October 2019, after it received an unrelated referral regarding the Hernandez children. As part of its investigation, the Department learned that Angel was living with Gomez’s brother (paternal uncle) and mother (paternal grandmother). The paternal uncle indicated that mother brought Angel to the Gomez home on December 13, 2018, and asked that they care for him because he was “ ‘too much to handle.’ ” She picked Angel up on December 15, 2018 but had a friend return him to the Gomez home on December 19, 2018. Mother had not made a plan for the child’s care, nor had she given the Gomez family anything (clothing, diapers, food, etc.) to assist in his care. In addition, Angel was not covered under any medical insurance at that time.

At the time the Department became involved, the paternal uncle was attempting to obtain legal guardianship of Angel and had been paying for Angel’s medical treatment. Gomez had given temporary sole legal and physical custody to the paternal uncle and hoped Angel would continue to reside with him.^[4] He also reported that mother had not visited Angel while he was with the Gomez family but would call from different phone numbers to check on him. Family members suspected mother was using illicit drugs. Her whereabouts were unknown at that time. A Department social worker interviewed Gomez, who was in custody, and he reported prior domestic violence against mother and that both he and she have a history of methamphetamine use.

Mother contacted the Department in late October 2019, stating she was currently living with a friend. She declined to disclose the address and would not commit to meeting the social worker. She also stated she was too busy to meet with the Department and explained that she left Angel with the Gomez family for a few months so she could move but that she needed more time.

On November 8, 2019, the Department filed a petition asserting dependency jurisdiction under section 300, subdivisions (b) and (j). The Department alleged under subdivisions (b) and (j) that mother was a current abuser of methamphetamine which rendered her unable to care for Angel, who was then under the age of two, and that mother failed to reunify with her older children in a prior dependency proceeding due to her drug use. The Department also alleged under subdivision (b) that mother left Angel with Gomez’s family without making any plan for his care or providing authorization for medical care.[5] The court detained Angel with the paternal uncle and paternal grandmother on November 12, 2019.

3. Results of Initial Investigation

The Department submitted its first jurisdiction and disposition report in January 2020 and was attempting to locate mother at that time. The Gomez family reported that mother had not had contact with Angel since December 2018. She attempted to take Angel from the Gomez family in May 2019 and again in August 2019 but they would not release him to her as they believed she was under the influence. Both Gomez and the paternal uncle suspected mother was currently using methamphetamine. The paternal uncle and paternal grandmother expressed a desire to become Angel’s legal guardians if mother and Gomez failed to reunify with the child. The Department recommended reunification services for Gomez but recommended no services for mother because her whereabouts were still unknown.

4. Early 2020: Petition Regarding Angelina

Angelina was born in late January 2020. Mother tested positive for opiates and methamphetamine upon admission to the hospital but denied drug use. Angelina tested positive for methamphetamine at birth. Angelina was born with several serious health conditions that required her to be treated in an intensive care setting until early March 2020. Mother only received prenatal care while she was in jail in July 2019.

Mother left the hospital a few days after Angelina’s birth. She did not visit the hospital after her release but was in contact with Angelina’s doctor about the baby’s condition. Although mother refused to speak at length with a Department social worker after Angelina was born, her boyfriend (Maldonado) did. In early February, he stated that he met mother approximately six months earlier and they had been living together in his van. Maldonado believed that his van had recently been stolen and as a result he and mother were now homeless, living on the streets and in shelters. Maldonado identified Gomez as Angelina’s biological father. He also acknowledged that he and mother frequently used crystal methamphetamine together while mother was pregnant.

On February 20, 2020, the Department filed a petition alleging dependency jurisdiction under section 300, subdivisions (a), (b), and (j) concerning newborn Angelina. The petition alleged generally that Angelina was born with opiates and amphetamine in her system, that mother abused methamphetamine and was incapable of caring for Angelina, that mother failed to reunify with the Hernandez children due to drug abuse, and that mother and Maldonado previously engaged in domestic violence with mother as the aggressor.^[6] Further, the Department recommended no reunification services for mother. The court detained Angelina from mother on February 21, 2020, at which time Angelina was still in the hospital and mother was incarcerated. The court ordered monitored visitation for mother.

Angelina was discharged from the hospital on March 2, 2020 and released to Angel’s paternal uncle and paternal grandmother. The Gomez family expressed willingness to adopt Angelina so that she could be raised with her half-brother Angel. Angelina’s medical findings indicated that she was at high risk for developmental concerns due to prenatal drug exposure, and the Department submitted a referral to the Regional Center for an evaluation due to delays in gross motor, fine motor, and social skills.

5. Further Investigation

Maldonado contacted the Department on February 11, 2020 to report that mother had assaulted him. At that time, the couple was still homeless and they were in an abandoned building. The couple had been discussing an upcoming appointment with a Department social worker which Maldonado wanted them to attend. Mother did not want to attend and an argument ensued. Maldonado attempted to hug mother during the argument and she scratched his face. He continued to hug her, and she tore his jacket. He reported the incident to law enforcement, and they documented the injury. According to the Department, the photographs show “a scratch with dried blood on the right side of [his] face near his ear and a very tiny scratch to the right side of [his] neck.” Mother was subsequently arrested and incarcerated for battery. She recounted the incident differently, saying that she and Maldonado were in the empty building and were smoking with a guy she knew and Maldonado became jealous. Maldonado also stated mother had hit him and broken his things previously and had scratched his face on one other occasion. Mother admitted wrestling with Maldonado when she was trying to recover a “meth pipe” from him because she did not want him to use methamphetamine on that occasion.

Due to conditions relating to the Covid-19 pandemic, the Department was unable to interview mother while she was in custody. In late March 2020, however, mother was released from custody to an inpatient drug rehabilitation program and the Department conducted an interview with her on April 1, 2020. Regarding her history of drug use, mother admitted that she started using methamphetamine on a near-daily basis in 2015 as a way to cope with past trauma, including domestic violence and sexual abuse during her prior relationships with Hernandez and Gomez. She expressed regret and guilt that she used methamphetamine while pregnant with Angelina. She also stated her commitment to identifying issues relating to her drug abuse and noted she had been sober since early February 2020.

Mother also explained why she had not visited Angel while in the custody of the Gomez family. Mother reported that she had frequently been the victim of domestic violence in her relationship with Gomez. In December 2018, mother learned that Gomez had been released from custody and had moved in with the paternal uncle and paternal grandmother. Due to the history of domestic violence and a restraining order protecting her from Gomez, mother stopped visiting the Gomez home. She contacted the paternal grandmother regularly on Facebook when she was not incarcerated.

6. June 2020

By June 2020, mother had been in the inpatient program for several months and consistently tested negative for all substances. The program confirmed that mother had not used any substances since her arrival in late March. During an interview with the Department, mother’s counselor at the inpatient program described her progress as “ ‘fair,’ ” noted that mother was participating in her program, but observed that “ ‘change is slow.’ ” Also during this time, mother reunited with her own mother (maternal grandmother) who was “providing the mother support.”[7]

The Department now recommended providing family reunification services to mother,[8] including a full substance abuse program, random drug testing, a 12-step program, a domestic violence support group for victims, mental health counseling, individual counseling to address child safety, domestic violence, sexual abuse, and substance abuse, and a parenting education program. These services were all provided at the inpatient facility and mother was in compliance. Mother also acknowledged the need to address her “ ‘deep issue,’ ” which she identified as abuse by Gomez and Hernandez, in order to reunite with the minors.

Mother reported that she was having regular calls and virtual visits with Angel and Angelina and expressed her desire to reunify with them. Both the paternal uncle and paternal grandmother said mother was aggressive with them in connection with her virtual visits, and that she sometimes cried during virtual visits, which upset Angel and Angelina. Mother’s counselor, however, reported no issues or concerns. Mother had her first in-person visit with Angel in late July 2020, while she was still at the inpatient rehabilitation program. The visit was difficult, however, as Angel had not seen mother in person since December 2018. He appeared to be afraid of mother’s mask and also appeared not to recognize her.

During this time, the Department was also in contact with Maldonado, who stated he was in an outpatient drug rehabilitation program. He tested negative for all substances when asked to test by the Department and was also testing through his outpatient program. He was participating in weekly group and individual sessions to address substance abuse and was also attending a weekly parenting group. His primary counselor at the program stated that Maldonado “is doing really well in his program, thus far.” During mother’s period of inpatient rehabilitation, Maldonado returned to work with his uncles as a gardener. He stated his desire to resume a relationship with mother and be a family with her and Angelina.

7. July and August 2020

Mother successfully completed her inpatient drug rehabilitation program at the end of July 2020. She and Maldonado called the Department on July 30, 2020, one week after mother left the inpatient program. They advised the lead social worker that they had rented a bedroom in a home shared with another couple.[9] Mother had not yet purchased bedding for Angel and Angelina, stating that she did not want to do so until she was sure the children would be released to her. She also stated that the home was not yet ready for an assessment.

The Department confirmed that mother had completed classes relating to domestic violence, parenting, and anger management, as well as 120 days of inpatient substance abuse treatment. Mother had consistently tested negative for all substances while in the inpatient program and continued to test regularly upon her release from the program. In addition, mother promptly enrolled in a six-month outpatient substance abuse program that required her to participate in three group sessions per week, one individual session every week or bi-weekly, random drug testing, and a 12-step program. In mid-August 2020, the program confirmed that mother was in compliance and “ ‘doing very well.’ ” During that same time period, Maldonado’s rehabilitation program confirmed that he “continues to do very well” and was attempting to register for a domestic violence program for victims.

In a last minute information submitted August 18, 2020, the Department acknowledged mother’s compliance with her drug rehabilitation program, but noted that she had only been out of the inpatient program for one month at that point. Also, the Department noted that Maldonado had not yet taken a domestic violence program or enrolled in individual counseling but he and mother had resumed their relationship.

8. August 2020: Adjudication

The adjudication for both Angel and Angelina took place on August 19, 2020.[10]

Regarding Angel, mother stated that in November 2018, one of her other children had been repeatedly hospitalized due to mental illness. Mother spoke with the paternal grandmother, who offered to care for Angel while mother dealt with that issue. Mother stated she had spoken with the paternal grandmother twice prior to dropping Angel with her and she assured mother she wanted to care for Angel. Mother later saw photos of Gomez with Angel on Facebook and, due to Gomez’s issues with domestic violence and drug use, mother attempted to regain custody of Angel. She indicated that she contacted the Department as well as law enforcement, but the Gomez family blocked her attempts to take Angel from them.

As to Angel, the court sustained the following jurisdictional allegations under section 300, subdivisions (b) and (j), respectively:

Count b-2: “In December of 2018, the child[’]s mother, … and father, …, left the child in the care of the child’s paternal uncle, …, without making an appropriate plan for the child’s ongoing care and supervision in that the mother and father failed to provide authorization for medical care for the child. Such failure to make an appropriate plan for the child’s care and supervision by the mother and father [endangers] the child’s physical health and safety and places the [child] at risk of serious physical harm and damage.”

Count j-1: “The [child’s mother] has a history of illicit drug use and is a current user of methamphetamine, which renders the mother incapable of providing regular care of the child. The child is of such a young age as to require constant care and supervision and the mother’s illicit drug use interferes with providing regular care of the child. The child’s siblings, [the Hernandez children], are prior Dependents of the Juvenile Court due to the mother’s illicit drug use. Such illicit drug use on the part of the mother endangers the child’s physical health and safety and places the child at risk of serious physical harm, damage, and danger.”[11]

As to Angelina, the court sustained the following jurisdictional allegations under section 300, subdivision (b):

Count b-2: “The [child’s mother] has a history of substance abuse … and is a user of methamphetamine and amphetamine, which renders the mother incapable of providing regular care for the child. The mother abused methamphetamine and amphetamine during the mother’s pregnancy with the child. On [the date of the child’s birth], the mother had a positive toxicology screen for amphetamine. On [the date of the child’s birth], the child Angelina … was born suffering from a detrimental condition consisting [of] respiratory distress, GI bleeding and a positive toxicology screen for opiates and amphetamine. The [child] is of such a young age, as to require constant care and supervision, and the mother’s substance abuse interferes with providing regular care of the child. The child’s siblings, [the Hernandez children] are prior dependents of the Juvenile Court due to the mother’s illicit drug use. Such substance abuse by the child’s mother endangers the child’s physical health and safety and places the child at risk of serious physical harm, damage, danger and failure to protect.”

Count b-4: “The [child’s mother] and male companion, … [Maldonado], have a history of engaging in domestic violence in the child’s home. On a prior occasion, mother scratched [Maldonado’s neck.] On a prior occasion, mother struck [Maldonado’s] face, inflicting a bruise. Such violent behaviors on the part of the mother against [Maldonado], endangers the child’s physical health and safety and places the child at risk of physical harm, damage, and danger.”

The court ordered the minors to remain detained with the Gomez family, with monitored visitation for mother and discretion to liberalize visitation conditioned on written verification of her continued sobriety. The court also ordered the Department to assess mother’s home for possible placement or overnight visitation and to submit a written report to the court before October 30, 2020. Finally, the court found that Maldonado was not Angelina’s biological father and dismissed him from the petition.

The court continued the dispositional hearing to November 19, 2020.[12]

9. November 2020

The Department submitted a supplemental report to the court on November 4, 2020. At that time, mother was continuing to attend her outpatient rehabilitation program, including parenting classes and individual counseling, and Maldonado was attending his outpatient rehabilitation program and was attending domestic violence counseling. Mother’s recent drug tests were negative for all substances.

Regarding a home assessment, the report indicated that on August 20, 2020, the social worker asked mother if she had purchased beds for the minors. Mother said she had not and would not do so until she was assured the minors were being returned to her. The lead social worker evidently took no further action.

Regarding visitation, the report did not indicate, one way or another, whether mother had any visits with the minors between August 20, 2020 and October 7, 2020. But the report did describe an incident that took place on October 8, 2020, at a scheduled monitored visit. Mother and the lead social worker, who was to monitor the visit, waited on a grassy area outside a Department office where mother was to visit with the minors. Mother told the social worker that if Angel misbehaved during the visit, she planned to discipline him and she requested that the Gomez family stay away from her during the visit. The social worker responded that the area was public and the caregivers could stay if they wanted to do so. Mother responded that she was uncomfortable and appeared to summon Maldonado on her cell phone, stating to the social worker that if the area was public and the caregivers could be present, she would also like Maldonado to be present. The social worker perceived this action as a threat to her safety and warned mother that she could terminate the visit. Mother yelled at the social worker, “ ‘I’m in agreement! I never said I was calling [Maldonado.]’ ” The social worker believed this to be a threat. When the minors arrived, the social worker asked the caregivers to keep the minors in the car and terminated the visit. The social worker also submitted a security incident report to the Los Angeles County Security Operations Unit.[13]

After that incident, mother visited with the minors at the Department office on October 15, 2020 and on November 4, 2020. No issues or concerns were noted during these visits. However, the Department did not liberalize mother’s visitation due to the October 8, 2020 incident.

Finally, the Department advised that mother and Maldonado had recently rented a three-bedroom house in Ridgecrest, California, and were in the process of relocating.[14] Mother told the Department that she hoped Angel and Angelina would be returned to her so that they could live together in the newly rented home.

On November 19, 2020, the court continued the dispositional hearing to January 19, 2021.[15] In the interim, the court again ordered the Department to assess mother’s residence for the possible return of Angel and Angelina and to assess the possibility of liberalizing mother’s visitation.

10. December 2020

Mother continued to test negative for all substances during November and early December 2020. She was in quarantine for two weeks in late December and was unable to test. Further, mother completed an additional parenting class through her outpatient rehabilitation program. Mother also had successful monitored visits with the minors on November 4, 2020, November 18, 2020, November 25, 2020, and December 9, 2020. In the latter part of December, no in-person visitation took place due to the minors’ illnesses, a car breakdown, and mother’s two-week quarantine. In a last minute information filed January 5, 2021, the Department recommended that mother continue random drug testing and individual counseling. It also suggested that mother be required to take a 52-week course for domestic violence perpetrators.[16]

In a last minute information filed January 13, 2021, the Department reported the same visitation information as the prior report but characterized mother’s visits as “inconsistent.” The Department attributed the inconsistency to her recent relocation to a home in Ridgecrest, located several hours drive from Los Angeles, car trouble, and constant exposure to the maternal grandmother who was a frontline worker and who was therefore continually exposed to Covid-19. The Department indicated it was attempting to work with mother to liberalize her visitation and to do a virtual walkthrough of her new home.

In a subsequent report,[17] the Department advised that mother had successfully completed her outpatient rehabilitation program on January 19, 2021. Mother continued to test negative for all substances and a report from her counselor stated that mother “ ‘has shown commitment to treatment, evidenced by her attendance to the program on a regular basis … has a very positive attitude … actively participates in group discussions and is willing to accept feedback.’ ” The Department had also requested out-of-county testing so that mother could test at a location close to her home in Ridgecrest.[18] (Although mother had relocated to Ridgecrest, she was continuing to test regularly in Los Angeles County.)

11. Disposition; Appeal
    1. Dispositional Hearing

The dispositional hearing was held on February 5, 2021. Mother and the lead social worker testified.

Mother relayed that the Department had conducted a virtual home inspection on January 21, 2021. She said the social worker found no problems but indicated an unannounced home visit would need to occur at some point. In addition, she had provided the Department with copies of her lease agreement, utility bills, and correspondence from the Internal Revenue Service to confirm her new address. She also stated that she had completed her outpatient drug rehabilitation program and was in compliance with testing requirements. At that point, she was visiting with the minors three times a week—once in person and twice virually. The social worker told mother that she would need to have more face-to-face visits before the minors could be released to her.

The lead social worker also testified. Regarding visitation, she confirmed that mother only had monitored visitation with the minors to that point because “[t]here have been concerns at every single visits [sic] that were attempted when she was in the inpatient program. There were safety concerns when I tried to monitor the visit. That was also submitted to the court, with a security incident report submitted to the Sheriff’s Department. There have been other concerns when she’s had the visits at the office with a neutral monitor. All of this was submitted to the court.”

Regarding the October 8, 2020 incident, the social worker stated, “I recall her threatening me that [Maldonado] would be present, yes. And I had to terminate the visit because I feared [for] my safety and the children’s safety. Correct, yeah. She threatened me.” When asked why Maldonado’s presence in the area would be a threat, she stated, “There was no discussion with me. She was signaling him from the corner, and I did not know he was in the parking lot. So she was threatening me while she was on the phone with him. There was no request for him to come. She was saying he’s coming now.” And when asked which specific statements mother made that the social worker found threatening, she stated, “She did not have a conversation with me. She was on the cell phone with somebody during the whole time, and she was signaling for somebody, which I assumed was [Maldonado], to drive over to where we were located.” Counsel asked, “And that in itself you construed as a threat?” She responded, “Absolutely.”

When the social worker was asked to identify the other concerns reported and other visits at which inappropriate behavior occurred, she cited a visit at which a representative from the Regional Center came to observe Angelina.[19] The social worker emphasized that mother was not allowed to have anyone participate in any visit with the minors unless the Department agreed in advance. And in this case, the social worker said the assessment should have been conducted on a different date with prior approval and therefore mother’s conduct had been inappropriate. But mother testified that the Department was fully aware of the assessment prior to the visit and had not indicated it was inappropriate.

The social worker also said that the paternal uncle was “upset about all of the concerns during the visits, during the face-to-face phone calls. It’s been throughout the entire time that her behavior is not appropriate; that she only calls to speak with Angelina because Angelina cannot talk back; that she is very rude to Angel. She singles him out. [¶] So in trying to work with the mom, the concerns regarding the visitation has always been brought to her attention at every single visit by myself, by my supervisor, by the monitor.”[20] On cross-examination, however, she conceded that mother’s relationship with the Gomez family is “strained.”

Regarding the home assessment, the social worker confirmed that no physical assessment had been completed. She said that she “made several attempts to access the home. Every single time was canceled by the mother for different reasons. The very first reason I remember was that she was quarantined” in December 2020. In January 2021, mother was awaiting Covid-19 test results and the Department could not complete the home assessment. Then, after the test results came back negative, mother needed to be available at the residence for a two-week period so that the Department could conduct an unannounced home visit. But mother was in the process of finishing her outpatient program in Los Angeles and was not available to be in Ridgecrest for an uninterrupted two-week period.

The social worker also indicated that the paternal uncle had told her that mother’s apartment lease was “fake” and had actually been procured by Maldonado’s family. Further, the paternal uncle told the social worker that mother and Maldonado had been in a fight during the proposed two-week inspection period and mother “wasn’t allowed to be at the Ridgecrest address.” The social worker admitted on cross-examination that she did not look for a copy of the lease in the file nor did she ask mother about the paternal uncle’s allegations.[21] She also conceded that she could not identify any deficiency in the services mother had completed or in which she had participated and that she was unaware of any domestic violence between mother and Maldonado in the recent past.

1. 2. Arguments of Counsel

After hearing the testimony and receiving the other evidence, the court heard arguments by counsel. The Department opposed mother’s request that the minors be released to her for several reasons. First, counsel indicated that mother’s visits with the minors had been inconsistent and had been monitored to that point due to “the Department’s concerns with her visits. Not only the consistency, but, also, bringing Mr. Maldonado, who is part of the original petition regarding domestic violence between mother and him.” She explained further that “you’re hearing the mother testifying that she likes to have Mr. Maldonado with her during visits despite the domestic violence count that was sustained … .” Counsel concluded, stating the “Department just has concerns with the mother and what her actions show regarding these children. She doesn’t seem to think there are any concerns regarding her drug abuse history, regarding the domestic violence that was sustained in the petition. And based on that, Your Honor, I’m submitting on the two case plans that were submitted for both of them.”

Minors’ counsel joined with the Department, citing “inconsistent visits” and continued monitoring of those visits. In addition, counsel stated, “I have issues with mother’s what appears to be sometimes aggressive and hostile behavior not only to the social workers, but, also, to the caregivers; the fact that mother has not had a home inspection done to assess her home so, you know, there can be some visits there. The fact that mother has now moved further away to Kern County is also another issue. [¶] The fact that mother is on a lease with Mr. Maldonado, who she had domestic violence issue, which is one of the – that was very detailed in the detention and the jurisdiction report. There doesn’t seem to be any conjoint therapy or anything to address those issues, and, essentially, we’ll be putting the child in a home that has domestic violence without any services to remedy that effect. [¶] And, also, at least, I haven’t seen proof or her proof of what services mother has complied—other than what mother has said. So, at this point, I think it’s premature to release the minor to the mother.”

Mother’s counsel began his response by reiterating that the standard of proof for removal is clear and convincing evidence of a substantial risk of harm and asserted the Department failed to meet that standard of proof. Specifically, counsel emphasized mother’s total compliance with everything the court had ordered and the Department had requested: inpatient drug rehabilitation, outpatient drug rehabilitation, consistent negative drug tests, ongoing individual counseling, group sessions. Further, counsel noted that the lead social worker could not identify any deficiency in mother’s compliance. And as to domestic violence, counsel noted that both mother and Maldonado (before he was dismissed from the petition) addressed the domestic violence issue pursuant to the Department’s referrals and no further incidents had been reported since the couple had started their rehabilitation programs.

Counsel also objected to the Department’s characterization of the visit involving the Regional Center assessment as “an incident,” noting that the Department provided the referral for the benefit of Angelina and that mother was attempting to obtain services for her, as requested. He also noted that when pressed, the social worker was unable to identify any instance in which mother behaved inappropriately toward Angel or Angelina. As to the October 8, 2020 incident, counsel agreed mother had not handled that situation in the best way, but asserted that mother’s conduct on that day did not rise to the level of clear and convincing evidence of a substantial risk of harm to the minors.

Finally, with regard to visitation, counsel noted that some visits had been canceled but the reasons were varied and valid—illness of the minors, quarantine of mother, and limitations of mother’s inpatient program. But, counsel noted, mother consistently maintained virtual and telephonic visitation, “given the times we are in.”[22] Counsel asked the court to release the minors to mother with safety measures in place, including unannounced home visits, continued family preservation services, continued counseling, Regional Center services, and any other measures the court deemed appropriate.

1. 3. Removal Orders

The court ordered the removal of both minors from mother. The court commended mother for her progress but stated “the court is concerned, based on the information provided that so few visits have gone successful, that the Maldonado companion is on the lease and that the domestic violence incident related to him. [¶] And the court is also swayed by the position of minors’ counsel as well in terms of there being a continuing risk to the minors.”

The court ordered monitored visitation for mother near mother’s new residence with discretion to liberalize and provided that one visit each week could be unmonitored in a neutral setting. The court set a three-month progress hearing for May 6, 2021, to address the possibility of further liberalizing visitation. And the court indicated the Department could liberalize visitation to include unmonitored and overnight visits. The six-month review hearing was calendared for August 9, 2021.

Mother’s case plan required a full drug/alcohol rehabilitation program with aftercare, random biweekly drug testing, and participation in a 12-step program. In addition, the case plan required individual counseling to address mental health, domestic violence, and case issues, as well as a developmentally appropriate parenting class. [23]

Mother timely appeals from the removal orders.

DISCUSSION

Mother contends the Department failed to establish, by clear and convincing evidence, that the minors were at a substantial risk of serious harm from domestic violence at the time of the dispositional hearing and that no alternative to removal would adequately preserve their health and safety. We agree.

1. Legal Principles and Standard of Review

“A dependent child shall not be taken from the physical custody of his or her parents … with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence … . [¶] (1) [That] [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s ... custody.” (§ 361, subd. (c)(1).)

“Because we so abhor the involuntary separation of parent and child, the state may disturb an existing parent-child relationship only for strong reasons and subject to careful procedures.” (In re Kieshia E. (1993) 6 Cal.4th 68, 76.) California law therefore “requires that there be no lesser alternative before a child may be removed from the home of his or her parent.” (In re Jasmine G. (2000) 82 Cal.App.4th 282, 284; § 361, subd. (c)(1).) Of course, it is well established that “ ‘ “[t]he 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. [Citation.]’ ” (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)

“ ‘In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. … “[W]e draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” [Citation.] “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ‘ “[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence ... such that a reasonable trier of fact could find [that the order is appropriate].” ’ ” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.) Substantial evidence is “ ‘evidence which is reasonable, credible, and of solid value[.]’ ” (In re I.C. (2018) 4 Cal.5th 869, 892.) Finally, because a removal order requires proof of substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minors by clear and convincing evidence (§ 361, subd. (c)), we “must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005; In re Nathan E. (2021) 61 Cal.App.5th 114, 122–123.)

2. The Department failed to demonstrate, by clear and convincing evidence, that the minors were at substantial risk of harm due to domestic violence.

We begin by noting that the court did not order removal based on mother’s history of drug abuse. Indeed, the court recognized mother’s substantial efforts in her recovery. Instead, the court focused on the sustained jurisdictional allegation regarding domestic violence.[24]

It is well established that domestic violence is a valid basis for the assertion of dependency jurisdiction over a child as well as the removal of a child from parental custody. “Domestic violence is always a serious concern, and any propensity to it is certainly highly relevant as regards children’s welfare.” (Guardianship of Simpson (1998) 67 Cal.App.4th 914, 938.) Domestic violence in the same household where children are living may place the child in physical danger, as the child could be accidentally hit by a thrown object or a parent’s movement. Further, even if they are not physically harmed, it is well documented that children suffer enormously from simply witnessing the violence between their parents. (See In re E.B. (2010) 184 Cal.App.4th 568, 576, disapproved on an unrelated point in Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7.) Our courts have also observed that “ ‘[p]ast violent behavior in a relationship is “the best predictor of future violence.” ’ ” (In re E.B., supra, 184 Cal.App.4th at p.  576; In re R.C. (2012) 210 Cal.App.4th 930, 941–942.)

To determine whether a child will be in substantial danger in the parent’s physical custody, the court must consider, “not only the parent’s past conduct, but also current circumstances, and the parent’s response to the conditions that gave rise to juvenile court intervention.” (In re I.R. (2021) 61 Cal.App.5th 510, 520.) Applying these factors here, we conclude the Department failed to meet the high standard of proof required for removal on the basis of domestic violence.

First, and as to past conduct, we note that the record identifies only two incidents of domestic violence between mother and Maldonado, both of which occurred in the context of their use of methamphetamine. On February 11, 2020, the couple had been smoking with an acquaintance of mother’s in an abandoned building when mother scratched Maldonado near his ear. The photograph taken by law enforcement shows a scratch that appears to be less than two inches in length. On another occasion, mother scratched Maldonado while she was attempting to grab a “meth pipe” from him. The fact that both mother and Maldonado had not been using illicit drugs for nearly a year at the time of the dispositional hearing mitigates, to some extent, the risk that such conduct might occur in the future. Further, although we do not condone any violent conduct, it is notable that neither party sustained significant injury and neither incident occurred in the presence of the minors.

Second, we note that the evidence concerning mother’s current circumstances at the time of the dispositional hearing is somewhat unusual. In a typical case, only six months would have elapsed between the initiation of the dependency case and the dispositional hearing. Our courts have often noted that such a period of time may be inadequate to provide a parent the opportunity to demonstrate real change. (See, e.g., In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform”]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423–424 [200 days of sobriety not enough to demonstrate changed circumstances].) Here, however, nearly 18 months had passed before the dispositional hearing was held and mother had been in full compliance with her case plan for nearly a year at that point. Her successful rehabilitation was well documented by the Department and it was undisputed that mother completed a 120-day inpatient drug rehabilitation program as well as a six-month outpatient program. Mother had also participated in individual counseling, group sessions, a 12-step program, a domestic violence course, two parenting courses, and an anger management course. And mother regularly submitted to drug testing and tested negative for all substances without exception. Maldonado had also successfully participated in outpatient drug rehabilitation and had enrolled in a domestic violence course for victims. And the Department reported no further incidents of domestic violence after mother and Maldonado stopped using illicit drugs.

Third, mother’s response to the Department’s intervention —working diligently on her case plan, making progress, and gaining insight into the nature of her addiction—also mitigates the risk of future harm. As noted, mother made substantial, and thus far successful, efforts to address her drug abuse. The feedback the Department received from mother’s counselors consistently reflected mother’s willingness to participate in treatment with a positive attitude and accept support and criticism. As for domestic violence issues specifically, mother took courses in both domestic violence and anger management while in the inpatient rehabilitation program. The Department provided no analysis of the content of these courses in its reports, i.e., it did not identify any deficiencies in these courses.[25] Mother also identified past domestic violence, in which she was the victim rather than the aggressor, as a trigger and was committed to exploring that issue with her counselors.

The court identified three aspects of the case supporting its decision to remove the minors from mother: “that so few visits have gone successful, that the Maldonado companion is on the lease and that the domestic violence incident related to him. [¶] And the court is also swayed by the position of minors’ counsel as well in terms of there being a continuing risk to the minors.” We address these issues in turn.

As to visitation, the conclusion that “so few visits have gone successful[ly]” is not supported by the record. Although the lead social worker testified that issues arose at every visit, she could not identify any issues that related to mother’s interaction with the minors. Indeed, the Department’s reports indicate that mother’s interactions with the minors were appropriate. It is true that on one occasion, on October 8, 2020, mother did not handle her concerns about the visit optimally. Yelling at the lead social worker was plainly inappropriate. Yet even that conduct does not establish, by clear and convincing evidence, a substantial risk of harm to the minors. And the second “incident” identified by the social worker—mother’s attempt to have a Regional Center representative observe the visit—reflects, if anything, mother’s desire to comply with the Department’s recommendations regarding Angelina’s development. It does not support a reasonable inference that the minors would be at a substantial risk of harm in mother’s care.

We do recognize that the court was in a difficult position. The Department had not yet liberalized mother’s visitation to include unmonitored visitation at the time of the dispositional hearing. Numerous factors contributed to this situation, the most significant of which were limitations on in-person contact due to Covid-19 and limitations imposed by mother’s inpatient drug rehabilitation. Nevertheless, the presence of external factors that slowed reunification efforts does not constitute clear and convincing evidence of a substantial risk of harm to the minors.

As to the second issue identified by the court, we have already explained why the risk of future domestic violence is substantially mitigated in this case. And in addition to mother’s completion of relevant courses and therapy, we note that Maldonado also enrolled in a domestic violence course, even though he was dismissed from the petition because he is not the biological father of either of the minors at issue.

Turning to the concerns expressed by minors’ counsel, upon which the court stated it relied, we are similarly unpersuaded. Minors’ counsel cited several concerns during the dispositional hearing. First, he described mother’s visits as “inconsistent.” Typically, that characterization would reflect poorly on a parent, suggesting the parent failed to schedule a visit or failed to appear at a scheduled visit for some unexcused reason. Here, however, any inconsistency was not mother’s fault and therefore does not support removal. Specifically, the Department’s reports show that several visits were canceled in December 2020 because the minors were sick, mother was required to quarantine for two weeks due to exposure to Covid-19, and because her car broke down on one occasion. Further, even when mother was unable to have in-person visits with the minors, she consistently visited with them virtually. In short, nothing about mother’s visitation record supports a reasonable inference that the minors would be at a substantial risk of harm in her care.

Minors’ counsel also noted that mother sometimes exhibited hostility toward the Department social workers and Gomez’s family. We see no evidence in the record, however, of any action on mother’s part that was remotely violent or unpredictable, such that it would support an inference that the minors would be at risk of harm. The record shows that mother was resistant to speaking with the Department at the outset of the case and that she raised her voice to the lead social worker on one occasion. As to the Gomez family, mother expressed her unease in interactions with them due to the history of domestic violence in which she was the victim at Gomez’s hands. And the lead social worker acknowledged the relationship was fraught. But again, these interactions do not support a reasonable inference that the minors would be at substantial risk of harm in her care.

Minors’ counsel also expressed concern that the Department had not yet conducted an in-person home inspection. But surely if the court was concerned that the virtual walkthrough was inadequate to ensure the appropriateness and safety of mother’s new home, an in-person inspection could have been arranged in short order and the placement of the minors in mother’s home could have been conditioned upon a satisfactory inspection. And counsel’s observation that mother had moved to Kern County is irrelevant. The Department indicated it planned to transfer the case to Kern County after the dispositional hearing. In any event, relocation is not evidence of a risk of harm.

Finally, on the specific issue of domestic violence, minors’ counsel stated, “[t]here doesn’t seem to be any conjoint therapy or anything to address those issues, and, essentially, we’ll be putting the child in a home that has domestic violence without any services to remedy that effect.” We have already addressed the mitigating factors regarding domestic violence in this case. We also note that conjoint therapy was never ordered or even requested. Moreover, both mother and Maldonado had taken domestic violence courses. And counsel’s assertion that the family would be without services is unsupported. Lastly, the fact that minors’ counsel had not seen any proof of the services mother received is immaterial. Mother’s successful completion of rehabilitation and relevant courses was well documented. Supporting evidence was admitted at the dispositional hearing and was properly before the court.

The record also does not contain substantial evidence to support the additional required finding that removing the minors from mother was the only reasonable means of protecting them. (§ 361, subd. (c)(1).) Placing the minors with mother under strict supervision was a viable alternative. (E.g., In re Basilio T. (1992) 4 Cal.App.4th 155, 171–172 [“[T]his is not an extreme case of parental abuse or neglect, and the minors were not physically harmed; therefore, the minors could have been returned to the parents under strict supervision.”].) The record demonstrates mother’s compliance with the Department’s requests and it does not appear that mother would be resistant to continued supervision and involvement to assure the minors’ safety and her sobriety—for example, unannounced Department visits, on demand drug testing, and conditioning return of the minors to mother’s custody on her continued compliance with her case plan. We also note that mother had relocated to Ridgecrest and that the maternal grandmother lives there as well. The Department did not examine whether the presence of mother’s extended family might provide additional support as well as the opportunity for additional observation of the family to ensure the safety of the minors. The absence of evidence on this point undermines the Department’s position that removal was the only option available to protect the minors.

Accordingly, we conclude the evidence does not support the court’s dispositional orders removing the minors from mother. Given the passage of time, however, nothing in this opinion should be read to limit the Department’s ability to file additional pleadings on remand.

DISPOSITION

The dispositional orders as to mother are reversed. The matter is remanded for further proceedings consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

KIM, J.*

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

[2] Neither father is involved in the present appeal and we discuss their circumstances only as necessary to our decision.

[3] Early reports indicate mother “had a charge of violating PC 273A(A)- Child Cruelty: Possible Injury/Death” in 2015. The circumstances and resolution of the charge are not explained, however.

[4] Gomez reported that he had been granted temporary full legal and physical custody of Angel by the family court in February 2019. He stated he would provide documentation to that effect upon his release from custody in December 2019 or early 2020. It also appears that Gomez filed a petition to vest the paternal uncle with legal guardianship for Angel.

[5] The Department filed the operative first amended petition on December 23, 2019, which added two counts relating to Gomez.

[6] Maldonado was initially identified as “father” in Angelina’s petition. The operative first amended petition was filed in April 2020 and added jurisdictional allegations concerning alleged father Quintero. In August 2020, the court found Maldonado was not Angelina’s biological father and dismissed him from the petition.

[7] Mother described her childhood as “ ‘great’ with some ‘ups and downs.’ ” The maternal grandmother was very involved with mother’s extracurricular activities and was mother’s hockey coach. Mother denied any abuse or neglect during her childhood and characterized her family as “ ‘stable.’ ”

[8] In a supplemental report submitted at the end of June 2020, the Department noted mother’s good progress to that point and confirmed that although mother failed to reunify with the Hernandez children, she had completed a parenting class and a drug program, as required in that case. The Department changed its recommendation regarding reunification services for that reason.

[9] The Department had previously advised mother against cohabitation due to pending allegations regarding domestic violence.

[10] The adjudication and dispositional hearings were repeatedly continued due to delays relating to Covid-19, delayed paternity findings, ICWA compliance, and difficulty in obtaining the presence of incarcerated fathers. Angel’s adjudication hearing was originally scheduled for February 24, 2020, but did not take place until August 19, 2020. Angelina’s adjudication hearing was originally scheduled for April 30, 2020, but also took place on August 19, 2020. Due to ICWA compliance issues and the absence of the fathers in custody, the dispositional hearing for both children was further delayed until February 5, 2021.

[11] The court dismissed an identical count alleged under section 300, subdivision (b), stating that the Department failed to provide substantial evidence that Angel was currently at risk of harm due to mother’s drug use. The court specifically noted mother’s completion of an inpatient drug program and consistent negative drug tests.

[12] The Department was awaiting tribal responses relating to the Quintero father.

[13] This unit is a part of the Los Angeles County Sheriff’s Department and is dedicated to workplace safety issues. (See <https://bos.lacounty.gov/About-Us/Executive-Office-of-the-Board/Security-Operations-Unit> [as of Mar. 23, 2022], archived at <https://perma.cc/XQ7J-7BH9>.)

[14] It appears that the maternal grandmother was living in Ridgecrest at that time. Yet the Department’s reports do not include any analysis regarding mother’s current relationship with the maternal grandmother, such as whether the maternal grandmother might be providing support (financial, practical, emotional, or otherwise) to the family, and do not indicate if mother’s relocation was motivated by a desire to be close to the maternal grandmother. This omission is particularly odd, given that the maternal grandmother was “providing the mother support” while she was in the inpatient drug rehabilitation program.

[15] The court later continued the dispositional hearing to February 5, 2021.

[16] The Department’s reports from this time period contain no indication that any further domestic violence incidents between mother and Maldonado had occurred, nor do they evaluate the classes mother had already taken.

[17] This report indicated that the lead social worker would be filing a last minute information regarding the virtual home assessment she completed for mother’s new home and it appears that document was admitted into evidence at the dispositional hearing. The home assessment report does not appear in the record, but the social worker at issue testified to the content of the report at the dispositional hearing on February 5, 2021.

[18] At a hearing on January 19, 2021, the Department indicated it would request a transfer of this matter to Kern County following the dispositional hearing. The parties have not updated this court as to that issue.

[19] The date and circumstances of this visit are unclear. However, the Department provided the referral to the Regional Center.

[20] The Department’s reports do not include any concerns along these lines.

[21] The Department’s supplemental report dated November 19, 2020 indicates that the Department had received a copy of the lease.

[22] During most of 2020, the Covid-19 pandemic caused massive disruption worldwide in almost every area of life and dramatically curtailed face-to-face interactions.

[23] By this point, as noted, mother had already completed a four-month inpatient drug rehabilitation program, a six-month outpatient program, and had tested negative for all substances on at least a weekly basis since March 2020. She had also completed two parenting classes and consistently participated in counseling.

[24] Notably, only Angelina’s petition contained a jurisdictional allegation relating to domestic violence.

[25] As noted, in January 2021, the Department added a recommendation that mother attend a 52-week domestic violence course for batterers, without explanation.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.