In re So.H. CA2/8 ( 2021 )

Filed 2/5/21 In re So.H. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re So.H. et al., Persons B306822
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20CCJP02395A-C)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Lisa A. Brackelmanns, Juvenile Court Referee.
Affirmed.
Elena S. Min, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, Acting County Counsel, Kim
Nemoy, Assistant County Counsel, and Jane Kwon, Principal
Deputy County Counsel, for Plaintiff and Respondent.
**********
Mother L.P. has three daughters, So.H. (now nine), Sa.H.
(nearly seven), and S.S. (now two). S.S. has a different father
than the older girls. Mother appeals the jurisdictional order
declaring So.H. and Sa.H. dependents under Welfare and
Institutions Code section 300, subdivision (a),1 based on domestic
violence perpetrated by S.S.’s father, A.S. She also challenges
the jurisdictional findings based on her substance abuse as to all
three children, the dispositional order removing all three
children, and the order terminating jurisdiction over the older
two girls with a family law order granting custody to their father,
D.H. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This family came to the attention of the Los Angeles
County Department of Children and Family Services
(Department) in April 2020, following a domestic violence
incident between mother and A.S. According to the reporting
party, father punched mother in the face, choked her, and bit her
until she bled. Mother reported there were “[t]oo many [domestic
violence incidents between her and A.S.] to count.”
So.H. called 911 to report the incident. The reporting party
said the incident occurred away from home, and the children
were not present but heard the fight over the phone.
Mother told responding law enforcement officers she had
taken a Lyft to meet father at a parking lot following his release
from jail. According to the police report, father is a member of
the PJ Crips gang, with a moniker “Nutcase.” Mother was
offered but declined an emergency protective order.
1 All further statutory references are to the Welfare and
Institutions Code.
2
When a Department social worker interviewed So.H. and
Sa.H., they said they did not witness the incident but they heard
mother scream for help over the phone. They denied witnessing
any other incidents of domestic violence. When asked about
substance abuse, Sa.H. responded “not in front of us, mommy
goes to the bathroom.”
Mother admitted to ongoing domestic violence and
harassment by A.S. She “tried to ‘get away’ ” from him, but he
would show up at her work, attack her, stalk her on social media,
and threatened they would be “together till death.” He had been
in and out of jail over the course of their relationship, and she
was not sure where he was staying. The Department was unable
to locate A.S. for an interview.
Mother denied she met A.S. at a parking lot. She told the
social worker she was at a friend’s house, and someone had
invited father to come over. She did not leave because she did not
have transportation. She later changed her story and told the
social worker that father prevented her from leaving by blocking
the doorway. The children were not there; they were with
maternal grandmother. Mother and A.S. called the children so
he could speak with them. He became enraged after one of the
children mentioned an upcoming birthday party for a friend,
believing the child was referring to a male friend of mother’s.
They began to argue about seeing other people, and A.S. punched
mother in the jaw. She “tried defending herself” but he
overpowered her, pulled her down a flight of stairs, and dragged
her outside. He choked her and knocked her dentures out of her
mouth. Mother tried to push him away with a pole, but he kept
coming after her, telling her “on Crip I’m going to kill you.” He
eventually fled the scene. According to mother, she had an active
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restraining order against A.S. at the time of the attack and was
participating in domestic violence services, although she was
unable to provide any documentation to the social worker.
Mother denied using drugs. After the social worker
confronted mother with a picture of her smoking marijuana
posted on her social media account, mother became upset,
insisting marijuana is legal and that she should not be required
to test. When the social worker cautioned about the importance
of having proper supervision for the children while using, mother
reported she is “not with her children every day and that they are
in the care of maternal grandparents and great-grandmother.”
She then implied that it was okay to smoke in front of the
children but then said she only smokes outside.
Mother tested positive for marijuana on April 22, 2020.
According to D.H., the father of the So.H. and Sa.H., mother
smoked marijuana in front of the children, and in the car with
them. Mother was an “avid user” of marijuana while they were
in a relationship.
Maternal grandmother was concerned about domestic
violence between mother and A.S. A.S. was not allowed at her
home but would often show up at other family members’ houses
looking for mother.
Maternal great-grandmother reported that mother and the
children had resided with her for the last two years. She
considered seeking custody of the children to provide them with
stability, as mother would move from place to place, and the
children would often miss school, which was interfering with
their learning. Mother would “go[] off with her friends” and was
unsettled.
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D.H. reported that mother made false domestic violence
allegations against him in 2011. His CLETS report confirmed
the charge had been dismissed. According to D.H., mother told
him A.S. once held mother against her will at gunpoint. He also
kidnapped and raped her. While A.S. was in jail in 2018, D.H.
allowed mother and the children to reside with him because she
was “not stable.” He believed A.S. to be dangerous and gang
affiliated. He was concerned for his children because of the
“ongoing abuse.” He wanted custody of his children if they were
not in mother’s care. His home was clean and appropriate, and
without any safety concerns.
Mother told the Department she and the children lived
with maternal great-grandmother. The home was cluttered, and
it did not appear that anyone lived in the room mother claimed to
occupy with the children. The room contained only a couch and
stacked boxes and containers; clothes were strewn everywhere.
A family friend reported that mother had not lived in the home
for some time. It was unclear where the children and mother
were living.
The family has a history of referrals to the Department.
A July 2019 referral alleged that mother left the children in the
care of maternal great-grandmother in November 2018, and was
unstable, homeless, and suffering from substance abuse issues.
She had not provided for the children since she left them in
maternal great-grandmother’s care. The referral was closed after
the Department was unable to locate the family.
A May 2014 referral alleged that mother brought Sa.H. to
the hospital with a fever and cough. Mother and Sa.H. were dirty
and smelled badly. Mother had a flat affect, would not make eye
contact, and was very guarded.
5
There was also a 2010 referral for severe neglect, after
mother’s infant son was found unresponsive at home and died
soon after. The referral was evaluated out after it was reported
there were no concerns of abuse or neglect.
In 2017, A.S. was the subject of a referral for another child,
based on domestic violence against the child’s mother, and
threats to kill the child. The referral was closed as inconclusive.
Mother has a criminal history including assault with a
deadly weapon, battery on a school employee, obstruction, and
resisting an executive officer. A.S. has an extensive criminal
history including burglary, possession of a controlled substance,
grand and petty theft, obstruction, vandalism, and robbery. He
was also convicted of domestic violence against mother in October
2019.
Mother minimized the October 2019 domestic violence
incident. She claimed A.S. did not hit her, but that she had to
run and hide from him because he was threatening to kill her.
Mother and A.S. had been in a relationship for five years
and married for three. Mother told the Department she would
give him another chance “if he got himself together.” She
admitted A.S. “puts his hands on me all the time.” However,
mother later recanted her admissions of ongoing abuse, claiming
that the only time A.S. hit her was the referral incident.
Mother filed for a restraining order on April 23, 2020, after
the Department threatened to detain the children. She also
enrolled in a 52-week domestic violence program and parenting
classes. However, mother permitted A.S. to retain access to her
social media accounts and had not blocked or deleted him.
At the May 4, 2020 detention hearing, So.H. and Sa.H.
were detained from mother and released to their father, D.H.,
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under the supervision of the Department. S.S. was detained and
placed with maternal grandmother. D.H. was found to be the
presumed father of the older children, and A.S., who was not
present at the hearing and had not been located by the
Department, was found to be an alleged father of the youngest
child.
The Department’s jurisdiction/disposition report noted that
A.S.’s whereabouts remained unknown. The Department
concluded that D.H. did not require any services and could
appropriately parent his daughters. D.H. was nonoffending, and
was doing an “excellent job taking care of the children and
meeting their needs.” The Department recommended closing the
case with a custody order as to So.H. and Sa.H.
So.H. revealed that mother told her to lie about the referral
incident, and to tell law enforcement and the Department that
she was not present during the incident. In fact, she was home
with mother and A.S. at the time of the incident. The incident
occurred at a friend’s house, where they were living at the time.
She did not see much, because she was in another room with her
siblings, but she knew mother and A.S. were fighting, and called
911. She was scared because her mother got hurt and had
bruises on her hand and forehead.
So.H. also told the Department that mother “does not
smoke that much” and that mother would tell her to leave the
room when she was smoking. Mother drinks alcohol, and once
got angry and hit the television with a bottle.
At the contested jurisdictional hearing, mother testified
that she enrolled in domestic violence classes after her children
were detained and had attended seven sessions. She admitted
her relationship with A.S. was “toxic.” Regarding the April 2020
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domestic violence incident, mother admitted her children were
present. The family had been socializing at a friend’s house when
father called mother a “bitch” and slapped her. Mother “took the
fight” to another room away from the children. The rest of the
“fighting and yelling” occurred away from the children.
Mother told the children to lie about the incident because
she was scared of losing them. She testified A.S. only became
physical with her two times. However, he had emotionally
abused her for a year, by lying and cheating. The children were
not present for the other domestic violence incident. She planned
to divorce A.S. and intended to abide by the restraining order and
have no contact with him.
Mother testified she smoked marijuana twice a day for pain
and for her appetite. She does not have a medical
recommendation for marijuana, because it is “legal.” Before it
was legal, she had a doctor’s recommendation for medical
marijuana. Mother usually smokes outside on the patio or in the
yard. The children are supervised by maternal grandmother,
great-grandmother, maternal aunt, or D.H. when mother smokes.
Mother said she does not get impaired to the point of being
unable to care for the children.
Mother first used marijuana after the death of her son in
2010, when she was 18 or 19 years old. She started using on a
daily basis when she was 23 or 24 years old, after Sa.H. was born,
and had last used the day before the hearing because she was “so
nervous.”
The juvenile court sustained the section 300,
subdivision (a) count, which alleged that “mother . . . and [A.S.]
have a history of engaging in violent altercations in the children’s
presence.” The petition described the referral incident, the time
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A.S. held mother at gunpoint, and A.S.’s conviction of spousal
battery. The petition stated “[s]uch violent conduct on the part of
[A.S.] and failure to protect by . . . mother, endangers the
children’s physical health and safety and places [them] at risk of
serious physical harm, damage, and danger.”
The court dismissed identical domestic violence allegations
under section 300, subdivision (b) as “duplicative” of the
sustained subdivision (a) count.
The court sustained other allegations under section 300,
subdivision (b), that mother “has a history of substance abuse
and is a current abuser of marijuana, which renders the mother
incapable of providing regular care for the children.”
The children were removed from mother. Mother was
ordered to receive reunification services for the youngest child,
including domestic violence classes, random and on demand drug
testing, parenting classes, individual counseling, and monitored
visitation. The juvenile court terminated jurisdiction over So.H.
and Sa.H. with a custody order granting D.H. physical and legal
custody, and providing monitored visitation for mother.
This timely appeal followed.
DISCUSSION
1. Jurisdiction
Mother contends there is not substantial evidence to
support the findings under section 300, subdivision (a) as to So.H.
and Sa.H. She argues subdivision (a) applies only to
nonaccidental harm inflicted by parents and guardians; she did
not inflict nonaccidental harm on either child; and A.S. is not a
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parent or guardian of either child.2 We need not reach the merits
of this argument, because the court’s findings under section 300,
subdivision (b), based on mother’s substance abuse, support
jurisdiction. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451
[“When a dependency petition alleges multiple grounds for its
assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory
bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In such a case, the reviewing
court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the
evidence.”].)
The evidence summarized above is substantial evidence
mother abused marijuana and the children were at risk of harm
in her care. (See In re Drake M. (2012) 211 Cal.App.4th 754, 767;
In re Cole C. (2009) 174 Cal.App.4th 900, 916 [discussing
substantial evidence standard of review].) The juvenile court
“need not wait until a child is seriously abused or injured to
assume jurisdiction and take the steps necessary to protect the
child.” (In re R.V. (2012) 208 Cal.App.4th 837, 843.)
This case is not like mother’s cited cases, In re Destiny S.
(2012) 210 Cal.App.4th 999 or In re Drake M., supra, where the
evidence did not establish the children’s parents or guardians
2 “A child who comes within any of the following descriptions
is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court: [¶] (a) The
child has suffered, or there is a substantial risk that the child will
suffer, serious physical harm inflicted nonaccidentally upon the
child by the child’s parent or guardian.” (§ 300, subd. (a).)
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abused substances or were unable to care for their children.
(In re Destiny S., at p. 1003; In re Drake M., supra,
211 Cal.App.4th at p. 764.)
2. Removal
Mother contends the Department did not meet its burden of
proof for removal of the children, arguing she was able care for
them and there were reasonable means to protect them without
removal, such as family maintenance services. We are not
persuaded.
A child may not be removed from a parent or guardian
unless there is clear and convincing evidence of “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 [or] guardian’s . . . physical custody.”
(§ 361, subd. (c)(1).) A juvenile court’s removal order is reviewed
under the substantial evidence standard of review. (In re
Heather A. (1996) 52 Cal.App.4th 183, 193; see also
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011–1012.)
As to A.S.’s child, S.S., mother does not challenge the
jurisdictional findings based on the severe domestic violence
perpetrated by A.S. Mother had only recently started to address
the violence in her relationship with A.S., minimized the severity
of the abuse, and told her children to lie about it. This, coupled
with her substance use, support the juvenile court’s conclusion
that removal was necessary, and that there were no other
reasonable means of protecting the children.
These same facts also support removal of the older
children. Even if the court had not sustained the section 300,
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subdivision (a) allegations as to So.H. and Sa.H., the juvenile
court was entitled to rely on the evidence of domestic violence
when making its dispositional orders. (§ 358, subds. (a) & (b); In
re Rodger H. (1991) 228 Cal.App.3d 1174, 1183 [the juvenile court
is not limited to the allegations of the sustained petition; rather,
the court may consider all evidence on the question of the proper
disposition].)
3. Termination of Jurisdiction
Mother also challenges the order termination jurisdiction
over the older children, and denying her reunification services,
arguing the children had lived with her all their lives, were
bonded to their younger sister, and there was evidence D.H. was
aware of the domestic violence in mother’s home but failed to
protect his children. Alternatively, mother contends that even if
the order terminating jurisdiction was justified, the court should
have ordered that mother and father share legal custody of the
children.
The standard of review for juvenile court orders
terminating jurisdiction is abuse of discretion. (In re
Stephanie M. (1994) 7 Cal.4th 295, 318.) Similarly, “ ‘[t]he
standard of appellate review of custody and visitation orders is
the deferential abuse of discretion test.’ [Citation.] Under this
test, we must uphold the trial court ‘ruling if it is correct on any
basis, regardless of whether such basis was actually invoked.’ ”
(Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) A court exceeds
the limits of legal discretion if its determination is arbitrary,
capricious, or patently absurd. (Stephanie M., at p. 318.) The
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appropriate test is whether the court exceeded the bounds of
reason. (Id. at pp. 318–319.)
We see no abuse of discretion here. Substantial evidence
supported a finding that father was an appropriate caregiver
capable of meeting the needs of So.H. and Sa.H., and that mother
was not then capable of safely caring for the children. Mother
was awarded services to reunify with S.S., and she may petition
the family court for a change of custody order as her
circumstances improve.
DISPOSITION
The orders are affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.
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