In re A.S. CA2/8 ( 2021 )

Filed 4/28/21 In re A.S. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.S. et al., Persons Coming B306474
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 19CCJP05946A-C)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Daniel Zeke Zeidler, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
**********
Mother J.R. appeals the juvenile court’s order sustaining a
subsequent petition under Welfare and Institutions Code
section 342 as to her three children, and the dispositional order
requiring monitored visitation. (All further statutory references
are to this code unless otherwise indicated.) Mother contends
there was not substantial evidence that she physically abused
then three-year-old E.S. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The family has an extensive child welfare history, with a
substantiated referral in February 2015, after mother tested
positive for PCP at the birth of her first son, A.S. The juvenile
court sustained allegations that mother used marijuana and PCP
while pregnant with A.S., and she suffered from bipolar disorder
and depression. A.S. was allowed to remain with mother with
family maintenance services but was detained in January 2016
after mother relapsed and tested positive for methamphetamine
and alcohol. Family reunification services were terminated in
May 2016, but mother filed a section 388 petition and was
granted additional time to reunify. A.S. was returned to mother
in November 2017, and jurisdiction was terminated in May 2018.
This division affirmed the jurisdictional order in that case on
appeal, In re A.R. (Feb. 29, 2016, B265399) [nonpub. opn.].
The Los Angeles County Department of Children and
Family Services (Department) received a referral for physical
abuse in December 2015, alleging that mother became frustrated
because of A.S.’s crying. Mother told her mental health provider
that she “grabbed [A.S.] and slammed him on the bed because he
would not stop crying.” The referral was closed as unfounded
after mother denied the incident, and because mother was
already participating in family maintenance services.
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The Department also received a referral in May 2019 that
mother was smoking drugs from a pipe, that one of the children
was seen holding a drug pipe, and that mother left the children
home alone without supervision. The referral was deemed
inconclusive.
Mother has a criminal history for burglary, assault with a
deadly weapon, and battery.
The family again came to the attention of the Department
following a July 2019 referral that mother was abusing drugs,
failed to supervise or care for her children, exposed her children
to gang members, and the family home was filthy and infested
with rats.
The investigating social worker noted that mother’s three
boys, then four-year-old A.S., two-year-old E.S., and one-year-old
B.S., were appropriately dressed, free of significant marks or
bruises, and comfortable in mother’s presence. Mother denied
physically disciplining her children, and A.S. reported that
mother used timeouts for discipline. Mother admitted she had a
history of methamphetamine abuse, but claimed she had last
used four years earlier. She also used to be gang affiliated but
was no longer involved with gangs.
The family home was dirty and disorganized. There were
significant safety hazards, such as a sharp knife on the
nightstand, a gun within one of the nightstand drawers, and an
open container of powder detergent on the bathroom floor. There
was very little food in the home, and a half empty bottle of vodka.
There was also a marijuana pipe in the nightstand. Mother
claimed it belonged to a friend.
Mother displayed paranoid behavior, accusing the social
worker of stealing something from the kitchen. According to
mother’s landlord, numerous tenants complained about a
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chemical odor coming from mother’s home, and drug activity,
with people constantly coming and going from the apartment.
Mother agreed to drug test on July 25, 2019, but then failed
to test. She was a no show for another test on July 31. She later
tested negative on August 1, 15, and 27, 2019.
At an unannounced home visit on August 2, 2019, mother
had addressed the safety concerns in her home, except the home
was still very dirty. Toys were strewn about the home, and the
children were tripping over them.
The Department recommended the children remain home
with mother with family preservation services. At the September
2019 detention hearing, the court allowed the children to remain
with mother on the condition that she allow the Department to
make unannounced home visits, and that she tested clean and
cooperated with services.
At a September 2019 home visit scheduled in advance with
mother, A.S. was unkept, with dirt on his face, and clothes that
did not fit. E.S. was dirty and naked. The children did not have
bruises indicative of abuse and were comfortable with mother.
Mother had a flat affect. She was applying makeup during the
interview, while the children were running around, jumping on
top of each other, and yelling and crying. She did not intervene
or redirect the children.
At another scheduled visit, a couple of days later, the house
was a mess, the floor was sticky, and the bathtub and toilet were
clogged and not working. There was a razor on the bathroom
floor, within reach of the children. There were dishes and other
items piled on the stove and counters, including a large empty
container of beer.
According to the maintenance worker for mother’s complex,
tenants often called to complain about mother using drugs, and
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the children screaming and being unclothed. The tenants were
unwilling to speak with the Department because they believed
mother to be gang affiliated, and they feared retaliation.
Mother failed to drug test seven times between
September 20 and November 1, 2019, and tested negative once.
She also failed to participate in an Evidence Code section 730
evaluation as ordered by the court. She did not return the
Department’s calls, and was unavailable when the Department
attempted to make an unannounced home visit. Therefore, the
Department recommended that the children be removed from
mother.
Mother was not present at the November 5, 2019
adjudication hearing. The juvenile court sustained allegations
concerning mother’s unsafe home and mental health issues.
The Department made an unannounced home visit the
following day. Mother initially tried to prevent the social worker
from entering her home, but then allowed her to enter. The
conditions were “deplorable.” A.S. was laying on the floor next to
a pool of his own vomit. The children were filthy. Mother
reported the home was infested with rats. The social worker saw
a mouse run across the room and roaches all over the walls. The
electrical outlets were not working, and there were exposed wires
coming out of the walls. A knife was accessible to the children.
Mother was overwhelmed. Her car and phone were not working.
The refrigerator and toilet were not working. The social worker
observed rotten milk and a jug containing urine in the living
room.
The children were detained from mother and transported to
the hospital, where it was determined that E.S. needed a forensic
exam due to the many bumps and bruises on his body and his
severe diaper rash, which caused him to cry in pain during diaper
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changes. A.S. required treatment in the emergency room due to
his high fever. The children were released to paternal
grandfather, who later reported that A.S. and E.S. were vomiting
and very ill.
The forensic examination was conducted on November 5,
2019. The social worker was unable to provide the evaluator
with any information about how E.S. had been injured. E.S. had
numerous pale pink bruises on the left side of his body, left leg,
right arm, right leg, forehead, left cheek, and buttocks. There
were old scars on his right and left legs, right hand, and back.
There was also a hematoma with a pale pink bruise on his
forehead, a scratch on his forehead, a pink bump to the right of
his groin, a pale blue bruise on his left thigh, diaper rash on his
testicles, a red scratch on his right knee, and discoloration on the
fourth digit of his left hand. The evaluator concluded his injuries
were “suspicious for abuse. Further information needed.” Photos
taken during the exam showed extensive injuries over much of
the child’s body.
Mother told the Department that E.S. and his brothers
“fight too much.” She often had to put A.S. in timeout, and would
spank him because he would hit E.S. The children would also hit
each other with toys. Mother was “always stressed out” because
the children “have too much energy.” She admitted she was
beaten as a child, and that she did not want her children “to go
through that.”
Mother continued to display unstable behaviors. She failed
to drug test on November 12, 2019, or report for her scheduled
Evidence Code section 730 evaluation. She admitted to using
drugs on November 3, 2019. Mother was arrested on
November 22, 2019, and was convicted of petty theft. Mother’s
phone contact with the children was inappropriate. She told
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them she had not eaten, and that the “baby in her tummy” had
not eaten either.
On December 5, 2019, the Department filed a section 342
subsequent petition with allegations under section 300,
subdivisions (a), (b), and (j) that the children were at risk of harm
because E.S. suffered numerous injuries that “would not
ordinarily occur except as the result of deliberate, unreasonable
and/or neglectful acts by . . . mother . . . .” The disposition
hearing on the section 300 petition was ordered to trail
adjudication of the section 342 subsequent petition.
The children had to be placed in foster care after paternal
relatives complained that mother threatened them, telling them
she is an active gang member.
The social worker interviewed A.S. during a visit with
mother. Mother was attentive to the children, and they appeared
to enjoy the visit with her. A.S. reported that mother “hits me
with a stick. I don’t know how many times.” Mother encouraged
A.S. to “tell the truth” and A.S. responded, “Yes, you do hit me
with a stick.” A.S. then became distracted, and the social worker
was unable to follow up about his remarks. Neither E.S. nor B.S.
was able to provide a meaningful statement. All the children
seemed comfortable with mother. They were clean and did not
have any suspicious bruises.
Mother again denied she hit her children. She attributed
E.S.’s bruises to rough play with his brothers. She also reported
that one of her male friends played rough with the boys. Mother
admitted she should have supervised the children better but was
“busy doing things I shouldn’t have been doing.” She admitted
she was “getting high and not taking care of her children.”
However, she was now sober.
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Mother was a no show for drug tests on December 2 and 11,
2019, but tested negative four times between November 27 and
December 30, 2019. Mother reported she was participating in a
drug program, mental health services, and a parenting program.
The Department’s March 2020 interim review report noted
that mother denied suffering from mental health problems, even
though her Evidence Code section 730 evaluation, completed in
February 2020, diagnosed mother with bipolar disorder,
posttraumatic stress disorder, and stimulant abuse. According to
the evaluation, mother has a history of substance and alcohol use
starting at the age of nine, and a history of depression, bipolar
disorder, posttraumatic stress disorder, mood swings, angry
outbursts, and impulsive behavior. She also suffered multiple
psychiatric hospitalizations as a child. The evaluation also noted
mother was five months pregnant and therefore did not want to
take psychotropic medications. The evaluator recommended
therapy and substance abuse classes.
The adjudication and disposition hearings were continued a
number of times due to the COVID-19 pandemic.
Because of the pandemic, mother’s visitation with the
children was over the phone and by video chat. The Department
had no concerns regarding her visitation. Mother provided
seven negative drug tests between February 19, 2020, and
April 10, 2020. She had been living in a sober living home since
January 2, 2020, and was an “exceptional resident,” obeying all
house rules, regularly drug testing, attending NA meetings,
meeting with her therapist, and attending her obstetric
appointments for her pregnancy.
The Department’s June 2020 interim review report noted
mother tested negative for drugs five times between April 13,
2020, and June 1, 2020. But visitation had become erratic, with
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mother missing some phone and video visits. Her visits were
sometimes of poor quality, with mother muting the children and
putting them on hold to talk to other people in the background.
Mother was continuing to participate in her programs, mostly by
telehealth due to the pandemic. Mother’s therapist reported
mother was at times difficult to engage and did not have a lot of
insight into her triggers. The therapist was concerned mother
might be overwhelmed with caring for her three children and a
new baby. Mother sometimes missed therapy sessions. She was
only “somewhat” engaged during her sessions.
Mother had resumed her relationship with the father of
E.S. and B.S., who had been released from prison during the
pendency of this case. They were living together at the sober
living house. Father has an extensive criminal history. His
CLETS report has 44 entries dating back to 2003, including
robbery, firearm possession, possession of controlled substances,
assault with a deadly weapon, and being an addict in possession
of a firearm. The social worker warned mother that father may
hinder her progress, but she told the social worker she intended
remain with him. Father refused to drug test or participate in
services. Mother had previously reported domestic violence in
her relationship with father.
On June 24, 2020, the juvenile court sustained the
section 342 petition, and removed the children from mother. The
court found that “[b]ased upon the presumptions in 355.1, the
court finds by a preponderance of the evidence” that the
allegations are true. The court ordered mother’s visitation to be
monitored, that she participate in a full six-month drug program,
random testing, a 12-step program, parenting classes, and
counseling. This timely appeal followed.
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DISCUSSION
1. Jurisdiction
Mother contends substantial evidence does not support the
finding that she abused E.S. or presented a current risk of harm
to her children. She argues the presumption in section 355.1 is
inapplicable because the forensic examination did not conclude
E.S.’s injuries resulted from abuse, finding only that his injuries
were suspicious, and that more information was needed.
We review the entire record to determine whether
substantial evidence supports the juvenile court’s jurisdictional
findings, resolving all conflicts and drawing all reasonable
inferences in support of the findings. (In re J.N. (2010)
181 Cal.App.4th 1010, 1022.)
Section 355.1, subdivision (a) provides that “[w]here the
court finds, based upon competent professional evidence, that an
injury, injuries, or detrimental condition sustained by a minor is
of a nature as would ordinarily not be sustained except as the
result of the unreasonable or neglectful acts or omissions of either
parent, . . . that finding shall be prima facie evidence that the
minor is a person described by subdivision (a), (b), or (d) of
Section 300.” The presumption affects the burden of producing
evidence. (§ 355.1, subd. (c).) Once the presumption is
established, the “burden of producing evidence ‘shifts to the
parents the obligation of raising an issue as to the actual cause of
the injury or the fitness of the home.’ ” (In re D.P. (2014)
225 Cal.App.4th 898, 903.)
The forensic examination revealed numerous suspicious
injuries all over E.S.’s body. The Department had received a
referral of physical abuse as to E.S.’s older brother, after mother
admitted to her therapist she often became frustrated with A.S.
because of his crying, and had “slammed him on the bed because
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he would not stop crying.” A.S. also told the social worker mother
disciplined him by hitting him with a stick, and mother admitted
to spanking the child. While there was evidence the children
engaged in rough play, this was not a plausible explanation for
E.S.’s injuries, as the children had never before had any
suspicious bruises, notwithstanding their often boisterous
behavior. Moreover, the injuries occurred at a time when mother
was clearly overwhelmed, using drugs, and living in “deplorable”
conditions.
Mother also contends there was no current risk of harm at
the time of the hearing on the subsequent petition, reasoning
more than six months had passed between the events and the
hearing, and that mother had engaged in services. Even though
mother was making progress in addressing her issues, the
evidence amply supports a finding that mother posed a risk to the
children. She had threatened paternal relatives, and witnesses
were afraid to talk to the Department because of mother’s gang
affiliation. Mother denied suffering from mental health issues
even though she had been diagnosed with several disorders. She
had often failed to comply with court orders, missed many drug
tests, and failed for months to submit to an Evidence Code
section 730 evaluation. Mother’s therapist reported that mother
lacked insight, and would likely be overwhelmed by her children,
especially with a new baby on the way. Mother had resumed her
relationship with father, who refused to cooperate with the
Department and had an extensive and violent criminal history.
Substantial evidence supports the juvenile court’s findings.
2. Disposition
Mother challenges the juvenile court’s monitored visitation
order, arguing there is no substantial evidence the children
would be at risk if she had unmonitored contact with them. We
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review an order setting visitation terms for an abuse of
discretion. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.)
We see no abuse of discretion. The evidence discussed ante
amply support’s the court’s finding that the children were at risk
of harm if mother were allowed to have unsupervised contact
with them.
DISPOSITION
The orders are affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
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