In re J.S. CA3 ( 2020 )

Filed 12/7/20 In re J.S. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re J.S., a Person Coming Under the Juvenile Court C090771
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD239844)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
J.S.,
Defendant and Appellant.
Appellant, Ja.S. (Father), appeals from a dispositional order of the juvenile court
in a Welfare and Institutions Code section 3001 proceeding. The court found that there
would be a substantial danger to the child J.S.’s, physical health, safety, protection, and
physical or emotional well-being if the presumed Father, with whom the child did not
1 Further undesignated statutory references are to the Welfare and Institutions Code.
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reside at the time the petition was initiated, were to live with the child, and there were no
reasonable means by which the child’s physical or emotional health could be protected
without removing the child from Father’s physical custody. Father contends: (1) the
court applied the wrong legal standard in making this determination; and (2) the court’s
finding that he posed a substantial danger to J.S. was not supported by substantial
evidence. We will affirm
FACTUAL AND PROCEDURAL BACKGROUND
J.S. was born in 2019. Father was not married to the child’s mother, L.S.
(Mother), and she is not a party to this appeal. The Sacramento County Department of
Child, Family and Adult Services (Department) became involved with J.S. soon after his
birth because both of the parents had been involved in recent dependency proceedings for
J.S.’s half-siblings. On May 10, 2019, the Department received a referral from a
mandated reporter alleging that Mother had cognitive and mental health issues that placed
the newborn, J.S., at risk of harm. The referral noted that Mother had two other children
out of her care in the dependency system. On the same day, a subsequent referral was
made by a different mandated reporter. This referral alleged that J.S. was born premature
at 34 weeks gestation and he would remain in the neonatal intensive care unit due to
being premature. The allegation stated that Mother was diagnosed with depression, post-
traumatic stress syndrome (PTSD), and cognitive delays. The reporter also stated that
Mother suffered from intermittent depression and anxiety symptoms throughout the
pregnancy and had suicidal ideation as recently as a month prior to J.S.’s birth.
J.S. was the subject of an original dependency petition under section 300,
subdivisions (b)(1) and (j), filed on May 15, 2019. On July 1, 2019, a first amended
petition was filed containing similar allegations. Pursuant to subdivision (b), the
Department alleged J.S. was at a substantial risk of harm because Mother had cognitive
deficits and a mental illness, which impaired her judgment and ability to provide care for
J.S. On July 30, 2018, a psychologist, Dr. Jayson Wilkenfield, diagnosed Mother with “a
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severe unspecified bipolar disorder with anxious distress, a rule-out impression for
schizoaffective disorder (bipolar type), post-traumatic stress disorder, and personality
disorder in which paranoid and avoidant dysfunctional personality attributes appear most
prominent.” Dr. Wilkenfield also opined that Mother had cognitive deficits and “would
likely score in the borderline to low average range of intellectual ability.” The
Department further alleged that Mother struggled to adequately parent J.S. during visits.
Pursuant to section 300, subdivision (j), count No. j-1 referred to the incidents that
led to the dependency cases for the maternal half-siblings, and alleged that J.S. was at a
similar risk of harm. Count No. j-2 referenced the history of domestic violence between
Father and the mother of the paternal half-siblings, which caused the paternal half-
siblings to come within the jurisdiction of the juvenile court, and alleged that J.S. would
be at a similar risk of harm. During the most recent incident of domestic violence, the
children were present in close proximity and Father “accidentally hit the child . . . in the
stomach.”
The detention report alleged that J.S. would not be safe in the care of either parent
due to Mother’s cognitive and mental health issues, the open dependency case for the
maternal half-siblings, and Father’s unsuccessful reunification with the paternal half-
siblings. On May 15, 2019, the Department obtained a protective custody warrant and
placed J.S. into protective custody on that date.
A detention hearing was held on May 17, 2019. Over the objection of both
parents, the court found the Department had established a prima facie case J.S. came
within the jurisdiction of section 300, subdivisions (b) and (j), and that there were no
reasonable means to protect him other than continuing his removal from parental custody.
A combined jurisdiction/disposition report was prepared by social worker
NaKisha Bailey. Mother reported a traumatic childhood that included sexual and
physical abuse and acknowledged her PTSD that caused her to have depression. She
reported she had experienced some depression during her pregnancy with J.S. due to not
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having his half-siblings in her care. But she had learned coping skills and did not think
her PTSD affected her ability to parent her children. She denied having any suicidal
ideations in April 2019. Mother participated in mental health services, had completed
parenting education and domestic violence counseling, and was engaged with Alta
Regional services. She questioned why J.S. had been removed from her care, explaining
that she thought he would remain in her care while she received reunification services for
the maternal half-siblings. Mother visited J.S. three times a week and wanted him
returned to her custody.
Bailey further reported Father had known Mother for more than two years but had
not observed her to be mentally unstable during this period of time. She had told him that
she received services from Alta Regional to help her with some life management skills.
Father told Bailey that the allegations in the petition about the history of domestic
violence between him and the paternal half-siblings’ mother were true. However, he
reported having changed since November 2017, and he believed he had benefitted from
attending the domestic violence classes. Although he did not have a probation officer, he
checked in with the probation department every other month. He was still unemployed
but continued to seek employment.
Bailey further reported that on May 22, 2019, the permanency social worker noted
Mother was doing well in her case plan for the maternal half-siblings. She had been
receiving independent living skills through a service provider and had completed
domestic violence counseling and was engaged in individual counseling. Mother’s
counselor, Susan Little, reported Mother had engaged in the counseling sessions and was
addressing the trauma she had from her past. In November 2018, after discussions with
her mental health care providers, it was agreed she did not need to take psychotropic
medication so long as she participated in frequent medication evaluations. The
permanency social worker did not have a “current record of [Mother] engaging in
ongoing evaluations” but believed she would benefit from such evaluations. Mother’s
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independent living skills provider informed the Department that the mother was no longer
benefitting from these services and terminated the services, expressing concerns about
her mental health.
A first addendum report contained information about a visit to the parents’
residences by Bailey. She visited Mother’s home on June 6, 2019. Bailey noted Mother
had plenty of food in the home as well as age appropriate necessities for J.S. Bailey
observed that Mother had installed child safety devices on the cabinets, drawers, and
front door, and she encouraged Mother to keep cleaning supplies locked up. Mother was
visiting with J.S. three times per week, and she was attentive to the child during visits.
Bailey also met with Father at the paternal grandparents’ home. Father stated he had
moved into their home in May 2019 after his separation from the paternal half-siblings’
mother. Father stated he did not have provisions for J.S. but could obtain them if he were
placed in his custody. The paternal aunt, who was present during the meeting as support
for Father, stated she was willing to assist him with obtaining clothing, diapers, and other
necessities. Father was willing to engage in services and reported completing 40 out of
the 52 weeks of domestic violence classes.
The Department wanted J.S. to remain placed outside of Mother’s home so that
she could receive additional counseling services. The Department did not want J.S.
placed with Father because he had a criminal conviction for domestic violence, was
found to have abused children in his case, and had not finished the services from the case
plan in the paternal half-siblings’ case. According to the Department, he had not made
sufficient progress in addressing his role in the domestic violence that led to the removal
of his other children.
A second addendum report included a proposed case plan for the parents. Father
was to participate in counseling, a domestic violence program, a parenting education
class, and a CPR/First-Aid class for children ages zero to five years old.
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A third addendum report, dated July 29, 2019, noted Mother had completed her
scheduled counseling sessions with Little. Little reported Mother had made progress and
would continue to benefit from additional sessions. Mother had not yet received an
evaluation for psychiatric medication but was in the process of scheduling one with her
medical providers. Father stated he had been unable to resume the domestic violence
classes because they cost $30 per session and he could not afford it. He told Bailey the
Department had previously paid the provider for the remainder of these courses during
the case plan for the half-siblings, but the service provider currently refused to honor the
payment. A social worker confirmed the payment was approved but stated since Father
“never followed through,” she was unsure if the provider would honor the previous
payment. Both parents continued to have supervised visits with the child, arrived on
time, and engaged with J.S. throughout the visits.
A fourth addendum report was filed on September 24, 2019. The report noted
Mother had contacted her primary care physician who told her he did not see a need for
her to take medication. The Department received confirmation from the provider that
Father had enrolled in the domestic violence classes.
A contested jurisdiction/disposition hearing began on September 26, 2020. Father
objected to the court taking jurisdiction and requested that J.S. be placed with him if he
were removed from parental custody. Shannon Bispham, a visitation supervisor, testified
that she had been observing visits between the parents and J.S. for “four to six months.”
She had been aware of the concerns about the mother’s mental health issues and
cognitive abilities. As a visitation supervisor, Bispham had observed clients who
displayed obvious symptoms of mental health issues such as auditory hallucinations,
incoherence, or aggressiveness. During the visits Bispham had supervised, the mother
had not displayed any cognitive deficits or symptoms of mental health issues. Mother
had been calm, coherent, and appeared to be a good parent to J.S. during the visits.
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Bispham had not noted any safety concerns about Father’s interactions with J.S. during
the visits.
Little was a therapist with WellSpace Health. She had a master’s degree in
marriage and family therapy and had been a therapist with WellSpace Health for seven
years, specializing in treating clients who were receiving reunification services from the
Department. She disagreed with how the addendum report characterized her evaluation
of Mother’s progression in their sessions. Little believed that Mother had benefitted from
the sessions and made significant progress in therapy. She also thought that Mother’s
mental health issues would not be detrimental to her parenting ability. Little disagreed
with the accuracy of the diagnoses made by Dr. Wilkenfield. She did not believe that
Mother’s state of mental health would in any way be detrimental to her children.
Social worker Megan Daniel testified about Mother’s progress in the case plan for
the two maternal half-siblings. At the 12-month proceeding for the maternal half-siblings
that had been held on April 22, 2019, Daniel had recommended that the juvenile court
find Mother had made significant progress in her case plan. Since then, she noticed some
decompensation with Mother after Father became more involved in her daily life. Daniel
stated that she had always had concerns about Mother’s relationship with Father,
particularly his involvement in her daily life, even though they were not necessarily in a
relationship. Mother shared with Daniel that, in her domestic violence classes, she was
“coming to understand that a lot of the interactions she was having with [Father] were
indicative of domestic violence and the cycle of domestic violence.”
Mother testified that she acknowledged that she has issues with depression and
PTSD. She had taken Seroquel, Zoloft, Abilify, and Mirtazapine at different times in her
life for depression. Mother reported that she was not living with Father and did not think
that she depended on him for daily activities. She was co-parenting with Father and not
in a romantic relationship with him. She and he disagreed at times, but she denied there
had ever been any type of domestic violence between them.
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At the conclusion of testimony and after hearing counsel’s arguments, the juvenile
court took the matter under submission and noted the 18-month review hearing was
coming up for the maternal half-siblings. The court indicated it planned to issue a ruling
addressing all of the matters at one time. Subsequently, the court issued a written ruling
in which it sustained the allegations of the first amended petition, with the exception of a
clause indicating Mother was unable to adequately parent J.S. during visits. The court
declared J.S. a dependent of the court, and found clear and convincing evidence of a
substantial danger to his physical health, safety, or emotional well-being if he were
returned to Mother’s custody, and there were no reasonable means to protect him other
than to continue his removal from her custody. The court also found by clear and
convincing evidence a substantial danger to J.S.’s physical health, safety, or emotional
well-being if he were placed with Father, the noncustodial parent, since there was an
active dependency case for the half-siblings, and Father had not completed his court-
ordered 52-week domestic violence class, general counseling, and parenting classes.
Father filed a timely notice of appeal.
DISCUSSION
We review the dispositional findings for substantial evidence. (In re T.W. (2013)
214 Cal.App.4th 1154, 1161, 1163-1164.) The California Supreme Court has recently
explained that “when reviewing a finding that a fact has been proved by clear and
convincing evidence, the question before the appellate court is whether the record as a
whole contains substantial evidence from which a reasonable fact finder could have
found it highly probable that the fact was true. Consistent with well-established
principles governing review for sufficiency of the evidence, in making this assessment
the appellate court must view the record in the light most favorable to the prevailing party
below and give due deference to how the trier of fact may have evaluated the credibility
of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from
the evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
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I
Statutory Findings
Father appeals the juvenile court’s dispositional order, contending the court
abused its discretion at the dispositional hearing because it applied the wrong legal
standard in determining that placing J.S. with Father would be a “substantial danger” to
the child. Specifically, he contends the court erred when it ordered placement with him
posed a substantial danger to J.S. under section 361, subdivision (d), rather than making a
detriment finding necessary to deny a noncustodial parent’s request for placement under
section 361.2, subdivision (a).
Section 361, subdivision (d), added to the code and effective beginning in 2018
(Stats. 2017, ch. 665, § 1), provides: “A dependent child shall not be taken from the
physical custody of his or her parents . . . with whom the child did not reside at the time
the petition was initiated, unless the juvenile court finds clear and convincing evidence
that there would be a substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the child for the parent . . . to live with the child or
otherwise exercise the parent’s . . . right to physical custody, and there are no reasonable
means by which the child’s physical and emotional health can be protected without
removing the child from the child’s parent’s . . . physical custody.” If the court orders
that a child be removed from parental custody at the dispositional hearing, it must
determine “whether reasonable efforts were made to prevent or to eliminate the need for
removal of the minor from his or her home . . . .” (§ 361, subd. (e).) Section 361.2,
subdivision (a) provides: “If a court orders removal of a child pursuant to Section 361,
the court shall first determine whether there is a parent of the child, with whom the child
was not residing at the time that the events or conditions arose that brought the child
within the provisions of Section 300, who desires to assume custody of the child. If that
parent requests custody, the court shall place the child with the parent unless it finds that
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placement with that parent would be detrimental to the safety, protection, or physical or
emotional well-being of the child. . . .”
Here, the record indicates the court proceeded under section 361, subdivision (d)
when deciding whether to remove J.S. from Father in that the court used “the substantial
danger” language both in its written ruling and when it adopted the findings/orders
attached to the Department’s report. Specifically, the court wrote, “Finally, by clear and
convincing evidence I also find that there would be a substantial danger to [J.S.’s,] well-
being if he were to live with his father, the non-custodial parent. [Father] has an active
dependency case with a half-sibling to [J.S.], and [Father] has not completed his court-
ordered 52 week Domestic Violence Offender Program, general counseling, or parenting
classes.” (Italics added.) Further, the court adopted the language in the findings/orders
contained in the Department’s report, confirming that it was considering and applying the
section 361, subdivision (d) standard, “[t]here is clear and convincing evidence that there
would be a substantial danger to the child’s, [J.S.], physical health, safety, protection or
physical or emotional well-being if the presumed father, [Father], with whom the child
did not reside at the time the Petition was initiated, were to live with the child or
otherwise exercise the parent’s right to physical custody, and there are no reasonable
means by which the child’s physical or emotional health can be protected without
removing the child from the parent’s physical custody.”
The juvenile court also considered and applied section 361.2 when it decided
whether to place J.S. with Father. While the Legislature added section 361, subdivision
(d) as the legal standard to use when deciding whether to remove a dependent child from
a noncustodial parent, it left section 361.2 untouched. Section 361, subdivision (d) and
section 361.2, subdivision (a) share similarities, but subdivision (d) of section 361 alone
requires the analysis of substantial danger to be undertaken while considering whether
that danger exists if the child lived with the noncustodial parent or that noncustodial
parent otherwise exercised his or her right to physical custody. Section 361.2,
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subdivision (a), conversely, requires a finding of whether the placement would be
detrimental to the child if a request is made for placement by the noncustodial parent.
Here, the juvenile court considered both statutes. It adopted the section 361.2,
subdivision (a) detriment findings attached to the Department’s report, finding that
placement with Father “would be detrimental to the safety, protection, or physical or
emotional well-being of the child.” However, the court did not explicitly reference the
“detriment” standard or subdivision 361.2, subdivision (a) in its written ruling.
We conclude that the court’s failure to specifically reference section 361.2,
subdivision (a) in its written ruling, even if error, would not compel reversal. In In re
D’Anthony D. (2014) 230 Cal.App.4th 292, 303-304, the Court of Appeal concluded that
the dependency court’s application of section 361 instead of section 361.2 to a
noncustodial parent was harmless error: “[T]he [dependency] court found ‘by clear and
convincing evidence’ that the requested placement with father posed ‘a substantial danger
to the children’s health.’ In view of this evidence, and the court’s express finding under
section 361, we cannot say it is ‘reasonably probable’ that the court would have made a
different finding had it considered whether the placement would be detrimental to the
children’s safety or physical well-being under section 361.2.” (D’Anthony D., at p. 304;
see In re Anthony Q. (2016) 5 Cal.App.5th 336, 339 [dependency court’s erroneous
application of § 361, subd. (c) to noncustodial parent was harmless error].) We likewise
conclude that that it is not reasonably probable the court would have made a different
finding had it explicitly considered the “detriment” standard under section 361.2,
subdivision (a) in its written ruling because the court found by clear and convincing
evidence that J.S.’s, placement with Father posed a “substantial danger” to the child. If
such a placement with Father posed a “substantial danger” to J.S. then it was also thereby
detrimental to the safety, protection, or physical or emotional well-being of the child.
Thus, any error was harmless.
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II
Substantial Evidence
Defendant further contends that even if the juvenile court made an adequate
finding of detriment under section 361.2, subdivision (a), there was insufficient evidence
to support the finding that placement with Father would be detrimental to J.S. We
disagree.
The evidence adduced at the dispositional hearing through report, testimony, and
judicial notice was that Father had a history of domestic violence, had an active
dependency case involving domestic violence, and had failed to complete his court-
ordered domestic violence program, general counseling, or parenting classes. Father has
had three referrals to the Department involving Father as the perpetrator of domestic
violence. During the most recent incident, the father and mother of J.S.’s half-siblings
engaged in domestic violence in the presence of the half-siblings and during the
altercation, Father hit the three-year-old half-sibling in the stomach accidentally. Father
described this domestic violent incident as “the worst in his relationship history.” He
described how he and the half-siblings’ mother “did a number” on each other and the
mother had to be transported to the hospital. This incident resulted in Father’s
incarceration and the initiation of a juvenile court case. Indeed, while much of the
testimony at the dispositional hearing focused on Mother, social worker Daniel’s primary
ongoing concern for Mother, after previously reporting Mother’s progress, was due to
Father’s involvement in her life and the potential for their relationship to develop into a
cycle of domestic violence. Viewed cumulatively and in the light most favorable to the
decision below, there was substantial evidence in support of the juvenile court’s finding
that placement of J.S. with Father would be detrimental to J.S.’s well-being.
Further, the court specifically sustained the section 300, subdivision (j), count
No. j-2 petition finding that J.S. was at risk of harm due to Father’s prior dependency
case and Father’s failure to treat the problem of domestic violence. Father does not
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challenge this jurisdictional finding. Where a parent has not appealed from the
jurisdictional findings, the same evidence that supports dependency jurisdiction is prima
facie evidence supporting the juvenile court’s dispositional order removing the child from
the parent’s custody. (In re A.F. (2016) 3 Cal.App.5th 283, 292.)
We therefore conclude that ample evidence supports the juvenile court’s finding
by clear and convincing evidence that placement with Father before he has made progress
in addressing the anger and domestic violence issues posed a substantial danger to J.S.
and would be detrimental to the safety, protection, or physical or emotional well-being of
J.S.
DISPOSITION
The juvenile court’s dispositional order is affirmed.
/s/
RAYE, P. J.
We concur:
/s/ \
BLEASE, J.
/s/
KRAUSE, J.
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