In re D.P.
Mother also challenges the parts of the disposition ordеr restricting her to monitored visitation and requiring her to participate in a full drug and alcohol treatment program, a 12-step program, and a 26-week domestic violence program. We conclude the court reasonably exercised its discretion to impose visitation restrictions and services. Accordingly,
FACTS AND PROCEDURAL BACKGROUND
The family consists of mother, father, and D.P. (born July 2011). Mother has another son, A.H. (born November 2001), by a different father. This appeal concerns D.P. only.
The family came to the attention of the Los Angeles County Department of Children and Family Services (the Department) after it received a referral alleging mother had driven with D.P. while under the influence of alcohol. The referral also reported mother suffered from bipolar disorder and had been experiencing manic episodes due to the illness. The episodes usually coincided with mother failing to take prescribed psychotropic medication.
On November 8, 2018, a social worker met with the parents and D.P. at the family home. Mother immediately confronted the social worker, angrily asking, “‘What the fuck do you want?‘” When the social worker asked mother to calm down and back away, mother replied, “‘Then you can get the fuck out of here!‘” She then put her hand in the social worker‘s face and walked away.
Father apologized for mother‘s outburst, confiding that he was “deathly afraid” of mother and what she might do to punish
Father reported that, in May 2018, mother had a “‘[b]ipolar episode‘” and “‘trashed‘” the apartment. He showed the social worker photographs of the inсident with several broken dishes scattered all over the floor. The paternal grandfather said he had been allowing the family to live in the apartment rent free, but mother had “destroyed the property.” He claimed that when mother got upset, she would hit the walls and floors with a hammer. He said the outbursts had caused $40,000 worth of damage, and he now felt compelled to evict the family. However, he said mother‘s conduct was his only concern, and he would permit father to stay with the children if she moved out.
Mother refused to allow the paternal grandparents to see D.P. She claimed they had been “‘harassing‘” her and had served her with a “‘fake eviction notice.‘”
Father said mother was “‘usually calm‘” unless she was “‘off her meds‘” or “‘mixing it with liquor.‘” The children were usually present during mother‘s outbursts. Father said mother drank daily, and identified her drink of choice as “The Club Long Island Iced Tea.” He regularly found empty cans of the drink in mother‘s car or next to mother when she was “passed out” on the couch. He said D.P. referred to the drink as mother‘s “‘bad juice,‘” and D.P. had reported seeing mother drink it on occasion. The paternal grandfather similarly reported that D.P. had said things to suggest mother “drinks a lot of alcohol.”
On November 4, 2018 (four days before the social worker came to thе home), mother verbally assaulted the paternal grandmother and threatened father with a knife. Father was
The social worker interviewed D.P. The child confirmed mother had threatened father with a knife while father held him. D.P. said “‘my mom almost killed him because she was mad.‘” (Boldface omitted.) He added, “‘My mom is always mad and yelling at my dad.‘” (Boldface omitted.) Apart from the incident with the knife, D.P. said “‘she just throws dishes.‘” (Boldface omitted.)
Mother returned to speak with the social worker and immediately began to cry. She claimed father beat her and made her perform sex acts for money. She said she wanted a divorce, but father refused and begged her to stay. She blamed her “‘depression‘” on her marriage and repeatedly referred to father as a “‘useless piece of shit‘” because he had not provided for the family. She said father was “‘lazy‘” and “controlling,” especially around D.P. Mother said she had been seeing a “‘behavior specialist‘” and taking medication because of the “‘mental health problems‘” that father had caused her.
Mother denied alcohol abuse. She claimed she drank only about once a month, and she never drove under the influence. She reported using marijuana “‘daily,‘” but said she smoked outside the home and never around her children.
While attempting to interview A.H., mother‘s older son, the social worker observed mother confront a woman leaving a downstairs apartment. The argument became heated and others
The social worker confronted mother about the argument, expressing concern that mother could not control her behavior even with the social worker present. Mother responded that the woman was a paternal aunt, and she had no problem “‘jump[ing]‘” the aunt in front of the social worker. Mother said she had controlled her anger appropriately and she confronted the aunt only because the aunt “threatened her first.”
Mother said the children would be better off in foster care than with father and repeatedly made comments about father‘s failure to provide financially for the family. She said father was lying to the social worker because he did not want to let mother go.
The parents signed a safety plan, agreeing a maternal aunt would stay in the home with the family for the next week. Father was uneasy about the plan, but believed D.P. would be safe with mother as long as the maternal aunt was present.
A week later, father obtained a temporary restraining order against mother based on the November 4, 2018 incident. The restraining order awarded father temporary custody of D.P. and ordered mother to vacate and stay away from the family home. However, mother refused to leave, so father took D.P. to live with the paternal grandparents.
Mother met again with the social worker and apologized for her behavior. She said her relationship with father was toxic and they triggered each other. She also insisted father was the abuser in the relationship, not her. She had attempted to obtain her own restraining order against father, but it was denied. She showed the social worker pictures of injuries to her face and arms
On November 11, 2018, mother visited her health care provider complaining of depression after receiving father‘s restraining order. Her doctor diagnosed her with adjustment disorder with mixed anxiety and depressed mood. Mother‘s medical records showed prior diagnoses for bipolar disorder, moderate cannabis use disorder, and moderate alcohol use disorder, dating from 2015 and persisting to the present. Shе had been prescribed an antidepressant, but said she only took it “when she was feeling upset.”
On November 30, 2018, the family court issued a two-year restraining order protecting father and D.P. from mother, and granting father sole custody. The restraining order restricted mother to monitored visitation with D.P. Three days later, the family court issued a temporary restraining order protecting mother, A.H., and D.P. from father. Mother acknowledged she had sought the restraining order because father had obtained one against her. To comply with the mutual restraining orders,
On December 10, 2018, the Department filed a non-detention dependency petition. The petition alleged both parents had a history of domestic violence that placed A.H. and D.P. at risk (
Mother enrolled in a weekly parenting class and anger management classes, and she participated in individual therapy. She tested negative for alcohol and positivе for marijuana at each on-demand test. The Department reported mother‘s visits with D.P. were appropriate.
On February 5, 2019, the court held a combined jurisdiction and disposition hearing. The children‘s counsel joined with the Department in arguing all counts of the petition should be sustained as to D.P. However, in view of his age, the children‘s counsel argued A.H. should be dismissed from the petition.
The juvenile court sustained the petition as to both children under
With respect to D.P., the court stated it would remove the child from mother‘s custody “pursuant to Dependency Court Order 415, the terms of which are contained in the minute order” and “release[ ] [him to] home of father.” The court ordered mother to participate in drug and alcohol treatment, a 12-step program, mental health services, including psychotropic medication compliance, a 26-week domestic violence program, and individual counseling. Father was likewise ordered to participate in individual counseling and parent education. The court denied mother‘s request for a permanent restraining order, ordered her visits with D.P. to be monitored, and specified that father was not to attend mother‘s visits.
DISCUSSION
1. The Juvenile Court Failed to State the Facts on which the Decision to Remove D.P. Was Based
“At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under
At the disposition hearing, the juvenile court purported to remove D.P. from mother‘s custody “pursuant to Dependency Court Order 415, [upon] the terms . . . contained in the minute order.” The relevant portion of the minute order states:
“DEPENDENCY COURT ORDER 415
“The Court has read, considered, and admitted into evidence the Exhibits identified in the minute order, the sustained petition, and the testimony and arguments, if applicable, and makes the following findings and orders:
“The child is hereby declared dependent of the Court under
Welfare and Institutions Code section 300 .“The Court finds by clear and convincing evidence, pursuant to
Welfare and Institutions Code sections 361(a)(1) ,361(c) ,361(d) and362(a) , and additionally applying to noncustodial parent(s)/legal guardian(s) the constitutional and statutory safeguards available to custodial parents.“It is reasonable and necessary to remove the child from the mother, as such removal is defined in
45 CFR 1356.21(k)(1)(ii) , and the care, custody, and control of the parent(s)/legal guardian(s) from whom the child is are [sic] bеing removed because there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being, and special needs, if applicable, of the child, and there are no reasonable means by which the child‘s physical health can be protected, without removing the child from the home and the care, custody, and control of that or those parent(s)/legal guardian(s).“The Court further finds that it would be detrimental to the safety, protection, or physical or emotional well-being, and special needs, if applicable, of the child to be returned to or plаced in the home or the care, custody, and control of that or those parent(s)/legal guardian(s).
“The Department of Children and Family Services made reasonable efforts to prevent removal but there are no services available to prevent further detention.
“The Court orders the child removed from home and the care, custody and control of the parent(s)/legal guardian(s) from whom the child
is being removed and placed in the care, custody and control of the Department of Children and Family Services. ”Family reunification, maintenance, or enhancement, or reunification services аnd visitation rights are granted or denied as set forth in the court ordered case plan(s) which are incorporated herein by this reference.”
Mother contends the juvenile court‘s bare reference to Dependency Court Order 415 at the disposition hearing violated
“[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 [citation], and a statement by the court of the facts supporting removal [citation], play important roles in this scheme.” (In re Ashly F. (2014) 225 Cal.App.4th 803, 810 (Ashly F.).) “Without those safeguards there is a danger the agency‘s declarations that there were ‘no reasonable means’ other than removal ‘by which the [children‘s] physical or emotional health may be protected’ and that ‘reasonable efforts were made to prevent or to eliminate the
We understand juvenile court bench officers are increasingly incorporating Dependency Court Order 415 into the court clerk‘s minute order to support removal of children under
The Department concedes the juvenile court erred when it removed D.P. from mother‘s custody without stating the facts supporting removal. Nevertheless, the Department argues the error was “harmless” because the court still would have removed D.P. from mother‘s custody, even if it had reflected upon and stated the factual basis for its decision. (See In re Jason L. (1990) 222 Cal.App.3d 1206, 1218 (Jason L.) [“[C]ases involving a court‘s obligation to make findings regarding a minor‘s change of custody or commitment have held the failure to do so will be deemed harmless where ‘it is not reasonably probable such finding,
2. It Is Reasonably Probable that, Had the Juvenile Court Made Mandatory Factual Findings Regarding Reasonable Alternatives, It Would Not Have Removed D.P. from Mother‘s Custody
Like other rulings of the trial court, when a juvenile court fails to make the factual findings required under
Mother contends the juvenile court‘s error was not harmless. If the court had considered the evidence in light of
Based on our review of the entire case, we conclude it is reasonably probable that the juvenile court would have found “removing [the] offending parent [mother] . . . from the home” (
Based on this record, it appears the juvenile court concluded, consistent with the alternative to removal specified in
Notwithstanding the juvenile court‘s failure to make the mandated removal findings, and the court‘s effective adoption of a statutory alternative to removal, the Department argues there is no possibility that the court would have declined to remove D.P. from mother‘s custody, even if it had considered other options. The Department relies on In re Michael S. (2016) 3 Cal.App.5th 977 (Michael S.). The case is inapposite.
In Michael S., the reviewing court soundly reasoned that
3. The Juvenile Court Reasonably Exercised Its Discretion to Require Monitored Visitation
“Visitation shall be as frequent as possible, consistent with the well-being of the child.” (
The juvenile court granted mother monitored visits with D.P. a minimum of three times each wеek for three hours each visit, and vested the Department with authority to liberalize visitation at its discretion. Mother argues the court exceeded its authority by restricting her to monitored visits, which she contends was not necessary to protect D.P. We disagree. Although mother cites evidence suggesting she was working toward eliminating the issues that warranted dependency jurisdiction, such as her participation in counseling and her clean alcohol tests, she fails to acknowledge substantial evidence supporting the court‘s implicit determination that unmonitored visitation could place D.P. at risk.
The most troubling evidence concerned mother drinking in her car and while caring for D.P. Her alcohol abuse also diminished the efficacy of mother‘s psychotropic medication, causing her to have manic and violent episodes that included
4. The Juvenile Court Reasonably Exercised Its Discretion to Order Services for the Safe Custody, Maintenance, and Supervision of D.P.
We review the juvenile court‘s disposition case plan for an abuse of discretion. “The juvenile court has broad discretion to determine what would best serve and protect the child‘s interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474; see also In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
Mother cоntends the order to participate in a full drug and alcohol program with aftercare as well as a 12-step program with a court card and sponsor was “unjustly burdensome” in view of evidence that she was also “managing her mental health, single parenting, eviction from housing, and a host of other programming.” Juvenile courts should be mindful of the burdens their disposition orders impose on parents already grappling with difficult conditions and circumstances. However, the paramount concern always must be the child‘s best interests, and we cannot reverse a disposition order reasonably fashioned to eliminate the conditions that led to dependency jurisdiction, no matter how burdensome its requirements may seem from the parent‘s perspective. (See
Mother also challenges the order to participate in a domestic violence program. She maintains there is “no evidence” that she “ever battered Father or anyone else” and claims it is unfair that she was ordered to domestic violence classes when father was the true perpetrator of the violence in their relationship. Contrary to mother‘s assertion, D.P. himself witnessed and reported that mother threatened father with a knife while father held the child. He said “‘my mom almost killed him because she was mad.‘” (Boldface omitted.) He added, “‘My mom is always mad and yelling at my dad.‘” (Boldface omitted.) And D.P. recalled that, apart from the knife incident, mother would “‘throw[ ] dishes‘” in the house when she became angry. (Boldface omitted.) Based on that evidence, the
DISPOSITION
The removal order is reversed. The disposition order is affirmed in all other respects.
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J.
The opinion in the above-entitled matter, filed on January 8, 2020, was not certified for publication in the Official Reports. For good cause, it now appears that the opinion should be published in the Official Reports.
There is no change in the judgment.
EGERTON, J.
EDMON, P. J.
DHANIDINA, J.