In re E.M. CA4/1 ( 2021 )

Filed 8/10/21 In re E.M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re E.M., a Person Coming Under
the Juvenile Court Law.
D078758
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J519828C)
Plaintiff and Respondent,
v.
W.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Vacated, in part, and remanded with
directions.
Donna Balderston Kaiser, under appointment by the Court of Appeal,
for Defendant and Appellant.
Caitlin E. Rae, Chief Deputy County Counsel, and Eliza Molk, Deputy
County Counsel, for Plaintiff and Respondent.
This is the third appeal related to dependency proceedings for this
family. W.M. (Father) appeals a February 17, 2021 order from a contested
adjudication and disposition hearing as to minor E.M. in which the juvenile
court found placement of E.M. with Father as a noncustodial parent would be
detrimental. He contends the juvenile court erred in basing its placement
determination on an earlier finding at a January 4, 2021 hearing that Father
sexually abused E.M.’s siblings (D.M. and S.M.) in which the juvenile court
applied the incorrect standard of proof.
In the first of two prior related appeals, we agreed that the juvenile
court erred in its January 4, 2021 orders granting the Welfare and
Institutions Code section 3881 supplemental petitions of the San Diego
County Health and Human Services Agency (Agency) for change of the
siblings’ placement because the court applied the incorrect legal standard of
proof in deciding those petitions and removing the siblings from Father’s
physical custody in violation of section 361, subdivision (c)’s requirements.
We reversed the January 4, 2021 orders and remanded with directions for the
juvenile court to conduct a new hearing on the section 388 petitions and
apply the correct legal standard of proof in deciding whether to grant or deny
the petitions based on the facts existing at the time of the further
proceedings. (In re D.M. (July 16, 2021, D078474) [nonpub. opn.] (D.M.),
pp. 25-26.) In the second appeal, we concluded the juvenile court’s
subsequent February 17, 2021 orders granting section 387 petitions as to the
siblings were also erroneous because they were based on its January 4, 2021
findings and orders. We issued a peremptory writ of mandate directing the
court to vacate its February 17, 2021 orders as to the siblings and to enter
1 Undesignated statutory references are to the Welfare and Institutions
Code.
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new orders consistent with our two opinions. (W.M. v. Superior Court
(July 16, 2021, D078633) [nonpub. opn.] (W.M.), p. 11.)
The order Father challenges in this appeal as to E.M. is from the same
combined February 17, 2021 hearing as the section 387 petitions for removal
of the siblings. Because the court’s findings and orders were so interrelated
and the court relied on its earlier findings regarding the siblings to determine
placement of E.M. with Father would be detrimental, that portion of the
February 17, 2021 order should also be vacated. We remand the matter with
directions for the juvenile court to vacate the portion of the order denying
placement of E.M. with Father and to conduct a new hearing on the issue
applying the correct legal standard of proof based on the facts existing at the
time of the further proceedings. (D.M., supra, D078474, at pp. 25-26.)
BACKGROUND2
When E.M. was born, the family had an open family maintenance case
for E.M.’s older siblings who were removed from the parents in August 2018
after Mother left the children unattended at a homeless shelter and returned
intoxicated. The juvenile court returned placement of the siblings to the
parents in October 2019 after the parents showed progress in their case
plans.
In January 2020, however, the Agency filed section 388 petitions to
modify the October 2019 orders placing the children with Mother and Father
because Mother alleged that Father sexually abused the older siblings in
December 2019, shortly after E.M. was born. Mother, who was sleeping in
2 We provide an abbreviated summary of the factual background of this
family’s dependency proceedings for context as to E.M. For a more extensive
discussion, we refer the reader to our opinions in D.M., supra, D078474, at
pages 2 through 10 and W.M., supra, D078633, at pages 3 through 7.
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the living room of the family’s apartment, awoke to see Father and one of the
siblings playing video games while sitting on a bed. The child’s hand was
inside the child’s pants in the genital area and Father was rubbing and
grabbing the child’s genital area over the child’s clothing. Father laughed
when Mother confronted Father, and the child jumped off the bed and said
the child was not doing anything wrong. Father left the residence when
Mother called the police. Mother said she had noticed a change in the child’s
behavior, including genital touching and appearing timid and upset when the
child was alone with Father.
In an interview, the child said Father touched the child’s private area
while the child watched Father play video games. The child said Father took
the siblings to get presents after the incident. The child did not think the
other sibling saw the touching. The child said Father sometimes touched the
child’s “booty.” The other sibling reported that Father touched both siblings’
“pee-pee” and “booty” with his hand while they wore clothes. The child said
Father thought Mother was sleeping, but Mother saw him.
The court made a prima facie finding on the section 388 petitions and
ordered Father not to have contact with the siblings pending a contested
disposition. The three children were placed with Mother.
However, in October 2020, Mother called her social worker stating she
felt overwhelmed and wanted to drink. Mother was running out of welfare
assistance, she had no support to watch the children, and she felt she could
not meet the children’s basic needs. She wanted to relinquish the children,
saying they deserved to be with families who could provide them a stable
home.
Thereafter, the Agency filed a petition on October 7, 2020 detaining
infant E.M. and stating Mother was destitute and could no longer care for her
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children. Mother requested the children be placed in foster care. The Agency
expressed concern that Mother would no longer care for the children and that
Father could sexually abuse E.M. or use substances if the child was left in his
care. Mother told her therapist that Father was a “sexual predator” who had
done “horrible things” to her and to other little girls “on the street.” She said
she caught Father sexually abusing the older siblings and that he had shown
them how to masturbate.
Father had not completed services for the sexual abuse case regarding
the older children nor had he addressed or gained insight into the protective
issue. Father self-discharged from a sexual abuse therapy group. There were
no relatives to consider for placement of E.M. Mother preferred the children
be placed with strangers in a two-parent household who work and do not
have to “struggle.”
Father had supervised weekly visits with the older siblings, but he did
not have visits with E.M. due to the open case regarding the siblings. Father
was waiting to seek visits with E.M. from the family court until the child
welfare services case was closed because he thought the unresolved sexual
abuse allegations would hurt his chances of obtaining visitation with E.M.
He denied the sexual abuse allegations and hoped he would be able to get the
children back into his care.
In a December 2020 addendum report, the Agency expressed concern
that Father had not disclosed a domestic violence incident with his ex-
girlfriend that occurred in late August 2020 and he was now living with a
new girlfriend. If the children were returned to Father’s care, they would not
be able to protect themselves if a violent incident occurred. Although visits
were going well between Father and the older siblings, the sexual abuse
investigation was still ongoing. The caregivers reported one sibling wanted a
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foster sister to pull down her underwear and the other sibling watched the
foster sister use the restroom. The caregivers were monitoring the siblings to
determine if the siblings were exhibiting sexualized behaviors or if their
curiosity was developmentally appropriate.
In a January 2021 addendum report, Mother expressed extreme fear of
Father reunifying with the children due to the sexual abuse allegations and
Father’s violent history. Father reported in early December 2020 that he had
not learned anything from the sexual abuse group. He disliked the group and
felt it was “weird.” He had begun offender domestic violence counseling
services.
The siblings’ caregiver reported that the siblings tried to kiss a foster
sister. One of the siblings reported that Father touched the other sibling’s
“butt” and that was why they had to leave Father’s house. When the
caregiver said it was not okay for anyone to touch their private areas, they
said they knew because Mother had told them.
The court held a contested hearing on January 4, 2021 regarding the
Agency’s request under section 388 to modify the placement of the siblings.
The Agency recommended supervised visitation with Father and placement
only with Mother. The court reviewed the reports and exhibits, including the
interviews of the children. The court heard testimony from an expert as well
as a social worker and Father.
The court stated it found the video interview of the children persuasive
and credible. The court found “by a preponderance of the evidence that there
is sufficient new evidence that makes the change of the order requested by
the Agency in the best interest of the children and therefore granted.”
The court stated the children would be placed with Mother, but would
remain in their current placement until Mother was in appropriate and
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sustainable housing. The court ordered Father into individual rather than
group counseling. The court wanted to see progress regarding the protective
and safety issues, including how to protect children from sexual abuse and
other forms of abuse.3
The court set a contested hearing for the adjudication and disposition of
E.M.’s section 300 petition and the section 387 supplemental petitions for the
siblings. An addendum report for the contested hearing indicated Father
would start individual sexual abuse services at the end of January. Father
reported that the criminal charges related to his domestic violence incident
were dropped.
The siblings’ caregiver reported hearing a recent discussion the siblings
had with her own children in which the children disclosed that they had to
move because their dad touched one of the siblings’ “booty.” One child said
Father touched the child’s “private part” with his hand. The child said, “My
mom saw it and I believe her.” The child said something about someone
facing a wall, and then said “I remember it.”
The Agency recommended termination of reunification services
regarding the older siblings because 30 months had passed, which exceeded
the reunification time frame. Father had not made substantial progress in
addressing the sexual abuse and domestic violence issues and was unable to
provide a safe home. Mother’s circumstances that caused her to feel
overwhelmed and unable to care for the children were largely the same and
she did not have a sustainable plan for support. However, the Agency
3 Father appealed the January 4, 2021 orders granting the section 388
petitions as to the siblings. “In D.M., we concluded the juvenile court erred
by applying an incorrect standard of proof in deciding the 388 petitions,
reversed the orders, and remanded with directions.” (W.M., supra, D078633,
at p. 6.)
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recommended reunification services for both parents as to E.M. with Mother’s
case plan to include therapy and psychological evaluation and Father’s to
include individual therapy.
On February 17, 2021, the juvenile court held a combined contested
hearing for adjudication and disposition of the section 300 petition for E.M.
and the section 387 supplemental petitions for the siblings.
A social worker testified that Father started individual sexual abuse
classes on January 28, 2021. He was referred for domestic violence classes,
but the provider asked him to wait until he had a court order. Father had
supervised visits with the three children twice a week and video calls. The
supervisors at the visitation center reported he was on time to the visits,
engaged well and appropriately with the children, and brought them snacks.
The Agency previously referred Father to a sexual abuse group, but he
did not fully engage in the group and felt uncomfortable. He denied sexual
abuse occurred. The social worker felt Father needed to make some progress
and gain some insight before he had unsupervised visits with the children.
The Agency was also concerned that due to E.M.’s young age, the child could
not verbalize if some form of abuse occurred.
Mother testified that she asked for help with the children because she
felt overwhelmed and did not want them to live in a shelter. She was also
scared about Father seeing the children and felt she could not protect them.
However, she recently entered a year-long program that provided housing,
job training, life skills, family reunification, and would help her find
permanent housing. She requested the court return the three children to her
care.
The court considered the evidence presented and the arguments of
counsel. The court noted that the issues regarding the three children
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converged to the point of whether the parents had the ability to provide a safe
and protective environment. The court expressed concern that as recently as
the month before the hearing the siblings were talking specifically about the
sexual abuse and expressing associated trauma.
The court commented that it had directed Father into individual
therapy because Father expressed discomfort in a group setting, but Father
continued to deny the issues. The court noted that after 29 months, the
siblings were not in a position of stability and permanency. The court
adopted the recommendations in the October 2020 report, with modifications,
and sustained the section 387 supplemental petitions. The court stated the
previous disposition and placement with Mother was not effective in the
rehabilitation and protection of the children and that there was “clear and
convincing evidence” that the siblings should continue to be removed from the
Mother. The court found placement with Father would be detrimental and
directed the children be placed in licensed foster care. The court terminated
mandatory reunification services for both Mother and Father as to the
siblings and set a section 366.26 permanency planning hearing.4
4 Father filed a writ petition challenging the February 17, 2021 orders as
to the siblings and requested a stay of the section 366.26 hearing. (W.M.,
supra, D078633, at pp. 6-7.) We issued a stay pending the finality of our
decisions in case Nos. D078474 and D078633. (Id. at p. 7.) We concluded the
court made its section 361, subdivision (c) finding, by clear and convincing
evidence, only as to Mother. We also concluded the orders finding that
placement of the children with Father would be detrimental were erroneous
because they were “not made either by clear and convincing evidence or by
application of section 361, subdivision (c)’s standard of proof.” (W.M., at
p. 10.) Therefore, we issued a peremptory writ of mandate directing the court
to vacate its February 17, 2021 orders and enter new orders consistent with
our opinions in D.M. and W.M. (Id. at p. 11.)
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As to E.M., the court made a true finding on the petition pursuant to
section 300, subdivision (b) and adopted the recommendations of the Agency’s
initial October 2020 report, which were modified to reflect that removal
would be only from Mother since Father was noncustodial. The
recommendation was further modified to state placement with Father would
be detrimental to E.M. When asked for the factual basis for E.M., the court
stated Father’s progress in participating in services was slow and noted
Mother did not feel E.M. would be safe in the care of Father based on his
behavior with the siblings and his previous denials. The court stated, “It’s for
these reasons that this court adopts and finds that the petition is true; that
there would be substantial danger to the physical health, safety, and welfare
of [E.M.] if not presently removed from the care of Mother. [¶] In addition to
that, even though Father has indicated he is attending services, this court
has already previously stated why this court feels that placement with
Father would be detrimental to [E.M.].” The order stated there was clear and
convincing evidence E.M. should continue to be removed from the custody of
Mother pursuant to section 361, subdivision (c).
Father timely filed this appeal of the February 17, 2021 order
regarding E.M.
DISCUSSION
As he did in the prior appeals, Father contends the juvenile court
applied the wrong legal standard when it determined placement of E.M. with
him would be detrimental. We again agree.
“The purpose of the California dependency system is to protect children
from harm and to preserve families when safe for the child. (§ 300.2;
[citation].) The focus during the reunification period is to preserve the family
whenever possible. [Citation.] Until services are terminated, family
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reunification is the goal and the parent is entitled to every presumption in
favor of returning the child to parental custody. (§§ 366.21, 366.22;
[citation].)” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424.)
“If a court orders removal of a child pursuant to [s]ection 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 [s]ection 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 placement with that
parent would be detrimental to the safety, protection, or physical or
emotional well-being of the child.” (§ 361.2, subd. (a).) A finding that
placement with a noncustodial parent would be detrimental to the well-being
of the child under this statute “must be made by clear and convincing
evidence.” (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829; see also
Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 246 [allowing termination
of parental rights based on detriment findings made at earlier hearings by a
preponderance of the evidence violated due process].) The party opposing
placement with a noncustodial parent bears the burden of proof. (In re C.M.
(2014) 232 Cal.App.4th 1394, 1402.)
At the outset, we decline the Agency’s invitation to apply the doctrine of
forfeiture to Father’s claims. Although Father did not specifically request
placement of E.M. with him at the dispositional hearing, he requested
placement of the child with him at the detention hearing and contested the
loss of custody regarding E.M. throughout the case. His request for
placement was also noted in the Agency’s initial report and recommendation.
As stated in our earlier decisions, the juvenile court erred in its
January 4, 2021 order granting the Agency’s section 388 petitions for removal
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of the siblings from placement with Father after finding “by a preponderance
of the evidence that there is sufficient new evidence that makes the change of
the order[s] requested by the Agency in the best interest of the children.”
(D.M., supra, D078474, at pp. 15-17; W.M., supra, D078633, at p. 7.)
In the February 17, 2021 orders, the court ultimately only made
findings under section 361, subdivision (c) that clear and convincing evidence
showed the children should continue to be removed from Mother. The court
did not apply the clear and convincing evidence standard to the finding that
placement of the siblings with Father would be detrimental. (W.M., supra,
D078633, at p. 10.)
Similarly, the court did not apply a clear and convincing standard
regarding placement of E.M. The order stated there was clear and convincing
evidence E.M. should continue to be removed from the custody of Mother
pursuant to section 361, subdivision (c). However, in making the
determination that placement of E.M. with Father would be detrimental, the
juvenile court relied on its earlier findings of detriment noting Father’s
progress in participating in services was slow and that Mother did not feel
E.M. would be safe in Father’s care based on his conduct with the siblings.
There was no specific evidence of detriment to E.M. and the court did not
state it was applying a clear and convincing standard regarding placement of
E.M.
Because the determination as to placement of E.M. is so intertwined
with the determinations regarding the siblings, we conclude the February 17,
2021 order finding placement of E.M. with Father would be detrimental
should be vacated and the matter remanded for the court to conduct a new
hearing on this issue.
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Given our conclusion, we need not address Father’s contention
regarding the sufficiency of the evidence to support the court’s finding of
detriment regarding placement of E.M.
DISPOSITION
The portion of the February 17, 2021 order determining placement of
E.M. with Father would be detrimental is vacated and the matter is
remanded with directions for the juvenile court to conduct a new hearing on
this issue and to apply the correct legal standard of proof to determine if
placement of E.M. with Father would be detrimental based on the facts
existing at the time of the further proceeding.
GUERRERO, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
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