In re L.S. CA5 ( 2022 )

Filed 5/5/22 In re L.S. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re L.S. et. al., Persons Coming Under the
Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF F083608
SOCIAL SERVICES,
(Super. Ct. Nos. 17CEJ300275-2,
Plaintiff and Respondent, 17CEJ300275-3, 17CEJ300275-4,
17CEJ300275-5, 17CEJ300275-6,
v. 17CEJ300275-7)
R.S.,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Kimberly J.
Nystrom-Geist, Judge.
Meghan Grim and Brian C. Bitker, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.
Appellant R.S. (mother) appealed from the juvenile court’s October 29, 2021
dispositional orders removing her six children, ranging from three to 12 years of age,
from her custody and denying her reunification services under Welfare and Institutions
Code section 361.5, subdivision (b)(3),1 which allows the court to deny a parent
reunification services when the child has been removed multiple times for physical or
sexual abuse. After reviewing the juvenile court record, mother’s court-appointed
counsel informed this court she could find no arguable issues to raise on mother’s behalf.
This court granted mother leave to personally file a letter setting forth a good cause
showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47
Cal.4th 835, 844.)
Mother filed a letter but failed to set forth a good cause showing that any arguable
issue of reversible error arose from the dispositional hearing. (In re Phoenix H., supra,47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
Prior Removal
In September 2017, then 11-year-old X.S., eight-year-old L.S., seven-year-old
Q.B., Jr., six-year-old G.B., four-year-old L.D., and three-year-old C.B. were removed
from mother’s custody after the two youngest children reported mother and her
boyfriend, Eric C., hit the two eldest children with a belt, leaving bruises on their legs and
arms. The juvenile court sustained allegations mother was aware Eric was hitting the
children but did not intervene. She told the children not to tell their father, Q.B. (father).2
The children were adjudged dependents and mother and father were ordered to participate
in reunification services. In March 2018, mother gave birth to Eric’s son, J.C., who was
1 Statutory references are to the Welfare and Institutions Code.
2 Father was the presumed father of Q.B., Jr., G.B., L.D., and C.B. D.H. and R.B.
were the alleged fathers of X.S. and L.S., respectively. Their whereabouts were
unknown.
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allowed to remain in her custody. In October 2019, the court terminated reunification
services and returned the children to mother’s custody with family maintenance services.
In February 2020, the court awarded mother sole legal and physical custody of the
children and terminated its dependency jurisdiction.
Subsequent Removal
In November 2020, the Fresno County Department of Social Services
(department) received a report that mother hit X.S. with an extension cord, causing
visible injuries. He also reportedly had old injuries inflicted by mother two days before.
Eric found out that law enforcement was contacted and removed J.C. from the residence.
The department took the children, except for J.C., into protective custody and mother was
arrested. The children were placed in foster homes and the parents agreed to place J.C.
with Michelle B., the mother of another of Eric’s children. Five days later, X.S. was
arrested for felony robbery.
The department filed a dependency petition on the children’s behalf, alleging
under section 300, subdivision (a) (serious physical harm) mother used inappropriate
corporal discipline on X.S., causing injury and placing the other children at similar risk of
harm. The petition further alleged under subdivision (b) (failure to protect) that mother
had a substance abuse problem with marijuana and exposed the children to domestic
violence.
The juvenile court convened the detention hearing on November 24, 2020. The
court continued the hearing to the following day and temporarily placed the children in
the department’s custody. On November 25, mother’s attorney requested a contested
detention/jurisdiction hearing. The court set a combined contested detention/jurisdiction
hearing for December 1, 2020. Meanwhile, mother and Eric took J.C. from Michelle’s
custody and absconded with him.
On December 1, 2020, mother appeared by video and her attorney declared a
conflict. The juvenile court relieved her attorney, appointed new counsel, and continued
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the hearing to December 4, 2020. On December 4, mother’s newly appointed attorney
advised the court that mother was having difficulty joining the hearing via video and
asked to continue the hearing. The court granted the continuance to January 26, 2021,
but ordered mother to physically appear. The court stated it had issued a protective
custody warrant for J.C., who was still in mother’s custody. She had written three or
four times, stating the court and the department acted in excess of their power in
removing her children. She wanted the case dismissed immediately.
Contested Detention/Jurisdiction Hearing
Mother appeared via video at the contested combined hearing on January 26,
2021, and testified about the incident with X.S. She was getting J.C. ready to go with
Eric when she heard X.S. in the living room cussing. She went to tell him to watch his
mouth and noticed he was on social media. She attempted to take his laptop and he tried
to pull it out of her hand. She slipped and made another attempt to take the laptop. He
“swung” at her and she went to her room and called the police. She denied hitting him
with a cord. She denied that Eric lived with her and that he was physically violent with
her. She did not know why the children would say that he was. She had injuries because
X.S. punched her. She did not give the police permission to enter her apartment or to
question the children. She denied using marijuana.
Mother did not understand the department’s concerns about the children living
with her. X.S. was out of control and was in juvenile hall. She tried to get him help by
calling the police chaplain and churches. He was taking courses and getting counseling.
She believed she could adequately take care of the children and they wanted to come
home.
At the conclusion of argument, the juvenile court ordered mother to surrender J.C.
to the department by February 3, 2021, or it was going to issue an arrest warrant for her.
Mother explained she arranged for an aunt to take temporary guardianship of J.C. The
court told her it had precedence over a guardianship executed outside of the court and the
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department. The court ordered the children detained, adjudged them dependents under
section 300, subdivisions (a) and (b) and set the dispositional hearing for February 24,
2021. X.S. was adjudged a ward of the juvenile delinquency court and placed under the
supervision of the juvenile probation department.
On February 3, 2021, the juvenile court ordered the department to offer mother
random drug testing. On that same date, the protective custody warrant was executed and
J.C. was taken into protective custody and placed in foster care.
On February 17, 2021, mother filed a letter with the juvenile court, claiming her
rights had been violated and asking the court to return the children to her custody. She
explained that she contacted law enforcement the day they were removed because X.S.
was abusing her. He refused to disconnect from social media while he was supposed to
be participating in remote schooling. She took his laptop from him and a struggle
ensued. She denied abusing substances and engaging in domestic violence. She believed
it unfair to remove her children when she was just asking for help. Meanwhile, her
children were suffering. Several of them had contracted COVID-19 and head lice, one
was wetting the bed, another had a broken wrist, and X.S. was in juvenile hall. X.S.
called her every day and was remorseful. He wanted to go home.
Contested Jurisdiction/Disposition Hearing
In its disposition report prepared on February 23, 2021, the department
recommended the juvenile court deny mother reunification services under section 361.5,
subdivision (b)(3) and order services for father and Eric.
On February 24, 2021, the juvenile court set a settlement conference for April 24,
2021, and a contested disposition hearing for May 12, 2021. The court appointed counsel
for Eric, who made his first appearance.
Mother, Eric, and father appeared with their attorneys at the settlement conference
on April 21, 2021, and the juvenile court confirmed the contested hearing.
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The juvenile court convened the contested disposition hearing on May 12, 2021.
After mother’s attorney declared a conflict, the juvenile court appointed new counsel and
continued the hearing to June 9. On June 9, the court set a contested jurisdiction hearing
for J.C. for September 22 and continued the contested disposition hearing for the other
children to that same date.
Prior to the hearing, mother’s attorney provided minors’ counsel questions to ask
Q.B., Jr. and L.S. to be admitted in lieu of testimony. Both children stated they loved
mother, missed her, and enjoyed their visits. Q.B., Jr. felt safe in mother’s care and
wanted to be returned to her custody. If he was not returned, he would be disappointed.
L.S. would feel safe with mother but “not 100 [percent].” She was not willing to return
to mother’s custody at that time. She believed mother needed help to control her anger.
In an addendum report, the department advised the juvenile court that although
mother was willing to participate in reunification services, she still denied physically
abusing the children. The department was also concerned about her ability to benefit
from services given her continued use of substances, engagement in domestic violence
and use of inappropriate forms of discipline.
The juvenile court accepted the questions provided by mother’s attorney and the
responses from L.S. and Q.B., Jr. in lieu of live testimony at the contested hearing on
September 22, 2021. Mother testified about the incident with X.S. and the laptop. She
denied hitting him with a cord. The only injury that she observed on him was a scratch
on his arm. She called the police because he was out of control. He left the apartment
whenever he wanted. He cursed and smoked “weed” with his friends. She called the
police numerous times because of his behavior. In March 2020, he threw a burrito at his
sister and went to juvenile hall. Two days before this incident, he threw a chair at her.
When she called the police, they said they could not come out because it was not a
homicide. Mother was arrested but her criminal case was dismissed. She asked the
department for family therapy during the prior dependency case but did not receive it.
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She asked again recently. The children had been out of her custody for 21 months and
she thought it would help them bond and adjust. Mother disciplined the children by
having them stand against the wall, sending them to bed, or removing their devices or
television privileges. She also punished them by not cooking a big meal or not letting
them have snacks and juice. She never used a belt or an electric cord or anything similar.
She learned in her parenting class in the prior dependency case that she could spank the
children on the buttocks with an open hand. She was participating in a parenting class
and she and X.S. visited unsupervised each week for one to three hours. She learned that
she needed to communicate better with her children.
Near the end of the court day and after a break, the juvenile court paused mother’s
testimony to allow social worker Iliana Hernandez to testify. Hernandez said mother
participated in a child abuse course, a parenting class, and a mental health assessment as
part of her prior dependency case but had not benefitted from them. The children still
reported that she engaged in domestic violence with Eric and physically abused them.
The court continued the hearing to October 26, 2021.
Mother resumed her testimony at the continued hearing on October 26, 2021. She
was asked how X.S. sustained the marks on his arm. She said they were fighting over the
laptop when she fell. She may have scratched him while falling. After she contacted the
police from her bedroom, she went out to the living room and found him playing music
on the television. She tried taking away his video game console and they struggled. She
was able to get the video game console from him but not the power cord. She went into
her bedroom and changed her clothes. X.S. had the cord to the video game console.
Asked why she took J.C. from Michelle, she said she did not know that she could not take
him. She realized it was a mistake and apologized to the department. She denied
engaging in domestic violence.
Maternal aunt Kaitlyn S. testified she was with mother and the children every day
for the first six months after the court returned them to her custody and she never saw
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mother physically abuse them. She was aware mother was having problems with X.S.
and L.S. with regard to social media. It was hard to get them to disconnect and to keep
them from having contact with father, who was not supposed to have contact with them.
She believed mother provided the children a safe home. Eric testified, after which the
court heard argument and continued the hearing to October 29, 2021, for its ruling.
The juvenile court adopted the department’s recommended findings and orders.
The court credited the children’s statements that mother and Eric engaged in domestic
violence and the neighbors’ statements that there was violence in the home and that
mother was abusive toward the children. One neighbor described her beating the
children. The court found mother and Eric actively tried to hide J.C. and did not give
much weight to X.S.’s recantation. The court did not find family maintenance services
an appropriate alternative to removal. Nor did the court find that providing mother
reunification services served the children’s best interests. The court ordered supervised
visits for mother twice a month for one hour and set a six- and 12-month review hearing
for L.S., Q.B., Jr., G.B., L.D., and C.B. on January 13, 2022, and for J.C. on March 30,
2022.
DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to raise claims of reversible
error or other defect and present argument and authority on each point made. If the
appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th
952, 994.)
The juvenile court’s authority to make decisions concerning a minor child derives
from section 300. If the court finds, by a preponderance of the evidence, the actions of
either parent bring the child within one of the statutory definitions set forth in section 300
and its subdivisions, the court may exercise its dependency jurisdiction over the child.
(In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) Here, the court found the children
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came within its jurisdiction under section 300, subdivisions (a) and (b)(1).
Subdivision (a) applies where “[t]he child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm inflicted nonaccidentally … by the child’s
parent.” The “court may find there is a substantial risk of serious future injury based on
the manner in which a less serious injury was inflicted, a history of repeated inflictions of
injuries on the child or the child’s siblings, or a combination of these and other actions by
the parent … that indicate the child is at risk of serious physical harm.”
Subdivision (b)(1) applies where “[t]he child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness, as a result of the failure or
inability of the child’s parent … to adequately supervise or protect the child, or …
provide regular care for the child due to the parent’s … substance abuse.” (§ 300,
subds. (a) & (b)(1).) Because the court assumes jurisdiction over the child, not over the
parents, jurisdiction may exist based on the conduct of one parent alone. (§ 302,
subd. (a); In re John S. (2001) 88 Cal.App.4th 1140, 1143.)
After the juvenile court finds a basis for jurisdiction under section 300, it must
conduct a dispositional hearing (§ 358). At the dispositional hearing, the court may
remove the child from a parental home if it finds, by clear and convincing evidence, that
the child would be at substantial risk of harm if returned home and there are no
reasonable means by which the child can be protected without removal. (§ 361,
subd. (c)(l).) If the court removes the child, it must provide the parent reunification
services unless it finds by clear and convincing evidence that one of the exceptions listed
in subdivision (b) applies. (§ 361.5, subds. (a) & (b).) When one of the exceptions
applies, the court may not order reunification services unless the court finds by clear and
convincing evidence that reunification serves the child’s best interest. (Id. at
subd. (c)(2).)
Good cause to warrant supplemental briefing in this case would require mother to
show that there is no substantial evidence to support the juvenile court’s jurisdictional
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findings and dispositional orders. Mother fails to make that showing. She contends, as
she did throughout the proceedings, that her children were wrongfully removed from her
custody and that her constitutional rights were violated. She denied abusing her children
or engaging in domestic violence. She claims X.S. is now in her custody and she
completed the services that were not offered to her by the department. She asks this court
to reconsider her case and reverse the juvenile court’s ruling that she is unfit to parent her
children.
Here, the juvenile court found a sufficient basis to exercise its dependency
jurisdiction over the children based on statements it deemed credible that mother was
physically abusing them and engaging in domestic violence with Eric. As the juvenile
court is the sole arbiter of credibility, we may not second guess its credibility and
evidentiary findings. (Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 970–971.)
Consequently, we would not disturb its jurisdictional findings even if we were reviewing
the merits of its jurisdictional findings.
Further, mother does not challenge the juvenile court’s order denying her
reunification services under section 361.5, subdivision (b)(3), which applies when “the
child or a sibling of the child has been previously adjudicated a dependent pursuant to
any subdivision of [s]ection 300 as a result of physical … abuse, that following that
adjudication the child had been removed from the custody of the child’s parent …
pursuant to [s]ection 361, that the child has been returned to the custody of the parent …
from whom the child had been taken originally, and that the child is being removed
pursuant to [s]ection 361, due to additional physical … abuse.” It is undisputed the
children were removed from mother’s custody in 2017 because of physical abuse and
again in 2020 for the same reason.
Based on the foregoing, we conclude mother failed to set forth a good cause
showing that an arguable issue of reversible error exists on this record. Consequently, we
dismiss the appeal.
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DISPOSITION
This appeal is dismissed.
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