In rе DAKOTA J., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. STACEY J., Defendant and Appellant.
No. B264460
Second Dist., Div. Three
Nov. 23, 2015
A petition for a rehearing was denied December 14, 2015
242 Cal.App.4th 619
Respondent‘s petition for review by the Supreme Court was denied February 17, 2016, S231608.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.
Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
LAVIN, J.—
INTRODUCTION
Appellant Stacey J. (mother) appeals the juvenile court‘s dispositional order removing her sons, Dakota and Joseph, from her physical custody and
FACTS AND PROCEDURAL BACKGROUND
Mother has three children, Dakota (age 18),2 Joseph (age 15) and Faith (age 10). All three children were the subject of a prior juvenile dependency proceeding initiated in 2008. In connection with that proceeding, mother was awarded legal and physical custody of Dakota and Joseph in 2010.3 However, for the past six or seven years, the boys lived with their father‘s stepfather, Michael Y., and saw mother only for a few hours each week.4 Faith continued to reside with mother.
In October 2014, the Department received an anonymous referral regarding Faith. In response to the referral, a Department social worker attempted to visit mother and Faith at the hotel where they were living. Mother refused to open the door to her hotel room or to speak with the social worker. A few days later, another social worker attempted to visit mother at the hotel. Although mother initially opened the door to her room, when she learned the social worker was from the Department, she responded with profanity and threats of violence, then slammed the door. At the social worker‘s request, officers from the Inglewood Police Department came to the hotel to assist with the Department‘s investigatiоn. Mother refused to open her hotel room door, and would not comply with the officers’ verbal request to allow the social worker to see Faith and assess her condition. After the officers learned that there were outstanding warrants against mother, they obtained a key from the hotel attendant and opened the hotel room door. The officers entered the hotel room and observed Faith sitting on the bed. Mother said to the officers,
With mother‘s consent, the Department placed Faith temporarily with a family friend, Dorothy W., while mother was in the hospital. During an initial interview, Faith told the social worker she was nine years old but did not go to school. Faith said she left the hotel room only occasionally, when she would go with her mother to buy cigarettes. Faith also disclosed that mother smoked сigarettes and “other stuff.”
The Department conducted a comprehensive investigation of the family over the next several weeks. After mother was discharged from the hospital, a social worker visited mother and Faith at Dorothy‘s home. Mother appeared frustrated by the investigation and denied neglecting Faith. Mother initially refused to answer the social worker‘s questions, stating “you guys are in the process of me being in the Cold War. It‘s international elite conspiracy. I don‘t need to answer you.” Mother later explained to the sociаl worker that she had a microchip implanted in the left side of her neck behind her left ear to protect her. Mother stated she “did not abuse the power of the microchip even though she could have used it to find out classified information.”
Mother became increasingly agitated during the interview at Dorothy‘s house and asked the social worker if Dorothy could join them. When the social worker stated the interview was intended to be confidential, mother responded, “[t]here is nothing confidential with me because I am sure the peoplе at pentagon [sic] are listening through the microchip.” Mother also said the microchip implanted in her head sent her visual images, and the people watching her were “mixed people who were alien species that look like people,” and were “everywhere.” Mother stated she taught Faith how to identify the aliens because most people cannot recognize them and they can come through the television. She told the social worker she had been seeing white flies flying all over her recently, and alsо explained that the moon is a holographic satellite.
With regard to Faith, mother confirmed she was being homeschooled, but acknowledged the homeschooling was not being overseen by any educational entity. Although mother denied taking Faith to beg for money, she admitted that they “go out to do ‘freedom of speech stuff’ which is asking for money.” Mother claimed Faith had been receiving regular medical care, but refused to provide the name of any physician who had ever treated Faith. Mother also acknowledged that Faith did nоt receive immunizations because “they are poisonous,” and did not see a dentist because dentists are “scandalous and the
After meeting with mother, the social worker interviewed Faith, who confirmed many of the details mother provided. Faith disclosed she had seen her mother smoke cigarettes “and something that looked like little white stone and wood color looking wrapper,” and that mother had a pipe and would sometimes put flowers in the pipe and smoke.
A few weeks after the interview at Dorothy‘s house, the social worker called mother to confirm that she would be taking Faith to get a medical examination. Mother said the hospital had contacted her to schedule an appointment. However, mother responded, “I don‘t have to do anything that you guys said and I am not taking her to Harbor UCLA. Those government hospitals are where they implant microchip in people. I think you are working with the Zulus and you seem to be an agent.” Mother abruptly ended the phone call and the Department‘s further efforts to contact her were unsuccessful.
The Department also interviewed Dakota and Joseph.5 Dakota told the social worker he and Joseph lived with mother until he was 12 or 13 years old, at which time mother was evicted from her home. Dakota and Joseph had been living with Michael Y. since that time. Dakota stated he was attending continuation school, rather than high school. He explained that during 10th and 11th grades he did not do his homework and, as a result, fell behind in school. Although Dakota initially said mother was “mentally fine,” he later said “she believes that there are too many conspiracies about the Government and that the moon is a hologram. She just says things that I cannot understand, at times.” Dakota remembered mother participated in a drug rehabilitation program when he was four years old in order to treat her crack cocaine addiction and denied mother was currently using drugs.
Joseph said he believed mother “is a good mom, but can be overprotective.” He expressed concern for mother‘s mental health, stating “I am worried about her paranoia, because she believes there are problems with the world and that someone could break into the house to kill us or hurt us.” Joseph confirmed he was having difficulty in school but was trying to schedule time to do his homework. He described Michael Y. as “a nice guy,” and said Michael provided food for the boys, transported them as needed, and washed their laundry for them. Joseph confirmed he felt safe with Michael Y. and at his home.
The Department аttempted to contact mother in December 2014 regarding the petition. Mother stated she would not talk with the social worker without her attorney present. The Department repeatedly attempted to contact both mother and her attorney, without success. The Department also interviewed the children again. Dakota said that although mother believed in conspiracies, it did not affect her ability to parent the children. He said he had heard his mother talk about the microchip in her head and her belief that she was being watched through the television, but said, “I don‘t pay attention to it. I feel safe with my mom. I‘ve never felt threatened by my mom in any way.” Joseph responded in a similar fashion. Faith told the social worker that “Mommy believes there are aliens in the TV. Mommy don‘t like fluoride she says its poison. We use water to brush our teeth.”
The Department filed an amended petition on January 29, 2015, adding an allegation that mother was unable to care for her children due to chronic use of marijuana and cocaine. According to the Department‘s last-minute information dated March 9, 2015, mother submitted to seven drug tests between November 18, 2014, and February 27, 2015. Mother tested positive for opiates (codeine, morphine, and/or hydrocodone) on four occasions and failed to appear on one occasion. She tested negative for all drugs on one occasion, but also tested positive for cocaine on another occasion. In response to the positive drug tests, mother told the Department she was taking prescription pain medication, but she initially failed to provide the Department with copies or any other evidence of the prescriptions. However, mother later photographed the prescription bottles and provided the photos to the Department. Mother also stated on March 31, 2015, that she would not continue to submit to drug tests or follow the other court directives because “she feels that the drug testing site lied and that they are setting her up.” Her counsel later represented that mother “believes that the positive test [for cocaine] on January 31st was tampered with by Pacific Toxiсology and/or somebody associated with Pacific Toxicology.”
The court held an adjudication hearing on April 13, 2015. The court found true both allegations regarding mother and found jurisdiction with respect to
Mother timely appeals.
DISCUSSION
This case presents the following issue for our consideration: Where clear and convincing evidence supports removal of one child from a parent‘s physical custody, may a juvenile court also order removal of the parent‘s other children, when those children are not living with that parent at the relevant time? We conclude the court may not do so because, as mother argues, the Legislature has only authorized remоval of a child from the physical custody of the parent(s) “with whom the child resides at the time the petition was initiated.” (
Although we usually review dispositional orders for substantial evidence, because the issue in this case involves the interpretation and application of a statute, our review is de novo. (In re D‘Anthony D. (2014) 230 Cal.App.4th 292, 298 [178 Cal.Rptr.3d 574].)
1. The Court Erred by Applying the Removal Statute to Dakota and Joseph
In construing a statute, our role is to ascertain the Legislature‘s intent so that we may effectuate the purpose of the law. (In re J. W. (2002) 29 Cal.4th 200, 209 [126 Cal.Rptr.2d 897, 57 P.3d 363].) We consider the words of the statute first, because they are normally the most reliable indicator of legislative intent. (Ibid.) Where, as here, the statutory language is unambiguous, the plain meaning controls. (See, e.g., In re D‘Anthony D., supra, 230 Cal.App.4th at p. 298.)
(2)
Our interpretation of the statute is internally consistent. For instance,
Our interpretation is also compatible with the considerable body of case law emphasizing thаt one of the major goals of the dependency system
We are aware that mother was given legal custody of the boys in 2010, in connection with a prior dependency proceeding. However, given the plain meaning of the statute and a commonsense interpretation of the phrasе “parent[] with whom the child resides,” we conclude the statute does not authorize an order of removal from every parent having legal custody rights, even those who do not currently reside with their children. Rather, as we have concluded, the Legislature chose to authorize removal only from a parent who is residing with his or her child. (Cf. In re Isayah C. (2004) 118 Cal.App.4th 684, 700 [13 Cal.Rptr.3d 198] [“[A] parent may have custody of a child, in a legal sense, even while delegating the day-to-day care of that child to a third party for a limited period of time.“].) Courts considering temporary placement following remоval are in agreement with our approach. For example, the Court of Appeal in In re Abram L. (2013) 219 Cal.App.4th 452 [161 Cal.Rptr.3d 837], concluded a juvenile court order removing two children from their mother was supported by substantial evidence. The court reversed the removal order as to father and observed the children “could not be removed from father‘s physical custody under
We conclude the court erred by ordering Dakota and Joseph removed from mother‘s physical custody under
Finally, we reject the Department‘s contention that mother forfeited her arguments on appeal by failing to object below. First, at the dispositional hearing, mother objected “to the court making any dispositional orders аs it is her position that there was no basis for such orders.” We read this statement to include an objection to removal because the Department made clear in its jurisdictional/dispositional report that it was seeking to remove all three children under
2. The Court‘s Error Was Not Harmless
We cannot reverse the court‘s judgment unless its error was prejudicial, i.e., it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (See, e.g., In re Abram L., supra, 219 Cal.App.4th at p. 463.) In this case, the prejudice from the court‘s removal order is manifest.
“A parent‘s right to care, custody and management of a child is a fundamental liberty interest protected by the federal Constitution that will not be disturbed except in extreme cases where a parent acts in a manner incompatible with parenthood. [Citations.]” (In re Marquis D., supra, 38 Cal.App.4th at p. 1828.) “[F]reedom of personal choice in matters of family
Our Legislature has acknowledged the gravity of a removal order. Before a court may order a child physically removed from his or her parents, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (
The heightened standard of proof is crucial, and necessary to provide due process, because “[a] dispositional order removing a child from a parent‘s custody is ‘a critical firebreak in California‘s juvenile dependency system’ [citation], after which a series of findings by a preponderance of the evidence may result in termination of parental rights.” (In re Henry V., supra, 119 Cal.App.4th at p. 530.) Further, the issuance of a removal order triggers the provision (or denial) of reunification services and starts the clock running on reunification efforts. (See
Although there is ample evidence in the record concerning mother‘s current inability to care for her children, we also acknowledge that mother recognized her situation and made arrangements for her boys to live with a relative who has cared for them and provided them with a stable home. Imposing a removal order in that instance is not only contrary to the plain language of the statute but is also punitive.
In addition, while it may often be the case that where removal of one child is necessary, removal of all children in the family also is necessary, that will not always be the case. (See, e.g., In re Hailey T. (2012) 212 Cal.App.4th 139, 147-148 [151 Cal.Rptr.3d 1] [reversing removal order because fact of infant‘s injury did not constitute clear and convincing evidence of a substantial risk of harm to older sibling].) That is, where more than one child is the subject of a dependency proceeding, the juvenile court must analyze each child‘s circumstances independently at the dispositional stage. Although there is overwhelming evidence to support the removal order as to Faith, Dakota and Joseph have been well cared for and felt safe while with Michael Y. in his home for more than five years. The Department does not argue otherwise.
DISPOSITION
The portion of the court‘s dispositional order removing Dakota and Joseph from mother‘s physical custody under
Although we reverse the dispositional order because it is based on an improper application of
Aldrich, Acting P. J., and Jones, J.,* concurred.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.