In re ASHLY F. et al., Persons Coming Under the Juvenile Court Law.
B250742
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
March 28, 2014
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Carlos E. Vazquez, Judge
Los Angeles County Super. Ct. No. CK98890
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.A. , Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Carlos E. Vazquez, Judge. Reversed and remanded with directions.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
After a combined jurisdictional and dispositional hearing the juvenile court found jurisdiction over Ashly F. and her sister Cristina F. under
FACTS AND PROCEEDINGS BELOW
The family came to the attention of the Department of Children and Family Services (DCFS) when a DCFS worker and a police officer came to the family home in response to a report of suspected child abuse.
While at the home the DCFS worker interviewed five-year-old Cristina. Cristina showed the worker a cut on one of her palms and said Mother had cut her with a belt. She told the worker that Mother often used a belt or a hanger to discipline her.
The worker then went to the children‘s elementary school to talk to Cristina‘s sister, Ashly. Ashly admitted that sometimes Mother hit her with a plastic hanger and had hit her with cords and belts “a long time ago.” In a subsequent interview Ashly told the worker that Mother had hit her with a thin hanger and it did not hurt although it left red welts on her arms, legs and hands.
Mother admitted hitting P.F. with an extension cord for stealing the wallet. She said she was aiming at P.F.‘s buttocks but the girl moved and the cord hit her in the face. Mother claimed she only hit P.F. two or three times. When asked how she usually disciplined the children Mother said she uses her hand or sometimes a “soft” belt. She used hangers “only to tap them.”
The worker interviewed the children‘s father, I.F. (Father), who stated that he was asleep when the incident arose between P.F. and Mother. When he saw P.F.‘s injuries he told Mother never to discipline any of the children like that again or their relationship would end. He treated P.F.‘s injuries with witch hazel, peroxide, alcohol and over-the-counter pain medication. He did not believe she needed to see a doctor. Father told the worker that he was unaware of the beatings Mother gave the children in the past because they had never told him about them.
DCFS removed Ashly and Cristina from their home and placed them in protective custody with their maternal aunt and uncle. In a petition filed under
In its report for the detention hearing DCFS stated that there were “no reasonable means by which the [children‘s] physical or emotional health may be protected without removing the [children] from the parents’ or guardians’ physical custody.” The report did not mention any reasonable alternatives to removal from the home that had been tried and failed or that had been considered and rejected. The report did state that the family was “referred to ARS services however it is unknown if family complied and followed through with services.” (The record does not show that anyone at DCFS checked.)3
The court found that a prima facie case was established for detaining the children under
Mother was allowed monitored visitation with the children; Father was permitted unmonitored visits. DCFS was ordered to provide family reunification services to the parents and the children and to prepare a prerelease investigative report on Father.
Between the detention hearing and the combined jurisdiction and disposition hearing Mother was arrested and convicted of misdemeanor child abuse. She was placed on probation and ordered to do community service and attend a 52 week parenting class. Mother moved out of the family home and Father told DCFS that he did not know where she was residing.
For the combined jurisdiction and disposition hearing, DCFS reported that Mother was attending parenting classes and regularly visiting Ashly and Cristina. Mother admitted losing her temper and using physical discipline
The report recommended that the children continue in an out-of-home placement. It stated that “there are no reasonable means by which the child(ren)‘s physical health can be protected without removing the child(ren) from the physical custody of the child(ren)‘s parents . . .” and that “[r]easonable efforts were made to prevent or to eliminate the need for removal of the [children] from [their] home.” Again the report did not state what “reasonable means” for protecting the children DCFS had considered nor what “reasonable efforts” it had made to eliminate the need to remove the children from their home. The report stated that “the family has been provided with Family Reunification Services including but not limited to referrals for services, Family Reunification Services, case management, and visitation.” The report did not state that DCFS had conducted the prerelease investigation report on Father as it was directed to do at the detention hearing. The report did state that a DCFS worker had an appointment with Father to assess his home but the record does not show whether this appointment was kept nor the result of the assessment.
Mother testified at the hearing. She told the court she was remorseful for her conduct toward P.F. She denied striking the children with shoes and clothes hangers. She stated she only used such objects to “tap” the children to get their attention. Mother confirmed that she was attending parenting classes. Finally, Mother testified she had just moved back in with Father since the children were not in the home. No one else testified.
The court sustained the petition under
As to disposition, the court stated that it had read and considered the DCFS reports and admitted them into evidence. The court found “by clear and convincing evidence” that “[t]here are no reasonable means by which the children‘s physical and emotional health could be protected without removing them from the parents’ physical custody.” The court further found that “[r]easonable efforts were made to prevent and eliminate the need for the children‘s removal.” Again, the court made no inquiry of DCFS regarding available services that would eliminate the need to further detain the children. (
DISCUSSION
On appeal from a dispositional order removing a child from a parent we apply the substantial evidence standard of review, keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence. (In re Noe F. (2013) 213 Cal.App.4th 358, 367.)
Under
To aid the court in determining whether “reasonable means” exist for protecting the children, short of removing them from their home, the Rules of Court require DCFS to submit a social study which “must include” among other things: “A discussion of the reasonable efforts made to prevent or eliminate removal[.]” (
The court also failed to carry out its duties in making the decision to remove Ashly and Cristina from their home.
In addition, the court was required to “consider, as a reasonable means to protect the minor, the option of removing an offending parent . . . from the home.” (
“[O]ur dependency system is premised on the notion that keeping children with their parents while proceedings are pending, whenever safely possible, serves not only to protect parents’ rights but also children‘s and society‘s best interests.” (In re Henry V. (2004) 119 Cal.App.4th 522, 530.) The requirement for a discussion by the child welfare agency of its reasonable efforts to prevent or eliminate removal (
DCFS and the court committed prejudicial errors in failing to follow the procedures mandated by Legislature and Judicial Council for determining whether the children needed to be removed from their home. Ample evidence existed of “reasonable means” to protect Ashly and Cristina in their home. Mother had expressed remorse for the injuries she inflicted on P.F. and was enrolled in a parenting class “to learn other ways to discipline [her] children.” By the time of the hearing Father had already completed a parenting class. Furthermore, “reasonable means” of protecting the children that should at least have been considered include unannounced visits by DCFS, public health nursing services, in-home counseling services and removing Mother from the home. (See In re Henry V., supra, 119 Cal.App.4th at p. 527.)
On the record in this case there is a reasonable probability that had the juvenile court inquired into the basis for the claims by DCFS that despite its efforts there were no reasonable means of protecting the children except to remove them from their home the court would have found that claim was not supported by clear and convincing evidence. Accordingly, the court‘s dispositional order must be reversed and the cause remanded for a new hearing in conformity with the statutes and Rules of Court discussed above. We base our disposition on the facts existing at the time of the dispositional hearing which we determined from the record on appeal. On remand, the juvenile court must make its decision based on the facts existing at the time of the further proceedings.
DISPOSITION
The dispositional order is reversed and the cause is remanded for further proceeding in accordance with law.
NOT TO BE PUBLISHED.
ROTHSCHILD, Acting P. J.
We concur:
JOHNSON, J.
MILLER, J.*