In re K.D. CA1/3 ( 2021 )

Filed 6/22/21 In re K.D. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re K.D. et al., Persons Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL A161514
SERVICES AGENCY,
(Alameda County Super. Ct.
Plaintiff and Respondent, Nos. JD03251601, JD03251701)
v.
Z.A.,
Defendant and Appellant.
Z.A. (Mother) appeals from a jurisdiction order declaring her
daughters, K.D. and O.D. (Minors), dependents pursuant to Welfare and
Institutions Code section 300, subdivision (b)(1), and from a disposition order
removing Minors from her custody.1 Mother contends (1) the juvenile court’s
jurisdiction and disposition findings are unsupported by substantial evidence;
(2) the court failed to state the factual basis for removal as required by
section 361, subdivision (e); and (3) the court abused its discretion in ordering
1 All further statutory references are to the Welfare and Institutions
Code.
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removal of Minors. We agree in part with Mother’s first contention and
reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition and Detention
In June 2020, the Alameda County Social Services Agency (Agency)
filed a dependency petition concerning K.D. and O.D., who were 14 and 11
years old, respectively. The petition contained a single allegation under
section 300, subdivision (b)(1) (“300(b)(1)”), that Minors suffered, or were at
substantial risk of suffering, serious harm or illness as a result of Mother’s
failure or inability to adequately supervise or protect them, and/or Mother’s
inability to provide them regular care due to mental illness, developmental
disability, or substance abuse. The Agency alleged as supporting facts that
Mother “has mental health concerns that impair her ability to provide safe,
stable, and adequate care, support, or supervision to [Minors],” then
enumerated specific factual allegations.
The first set of factual allegations, numbered “B-1a,” stated that in July
2018, Mother threw O.D. across a room causing her to hit her head, O.D.
refuses to return to Mother’s home because of how Mother treats her, and
Mother threatens to hit Minors. The second set, numbered “B-1b,” alleged
that during the initial investigation, Minors were visibly upset (crying,
fidgeting, rocking in their chairs) when discussing Mother, Mother yells at
them a lot, they are afraid of Mother, and they have not been to her home
since April 10, 2020. The third set, numbered “B-1c,” asserted that Mother
falsely accuses Minors’ father, David D. (Father), of sexually abusing Minors’
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younger siblings,2 she accuses Minors of assisting him, and she makes
various allegations against Minors and Father when she is upset.
The Agency’s detention report documented Emergency Response Child
Welfare Worker (CWW) Myesha Walker-Lillard’s investigation of Mother,
including Mother’s allegations that Father sexually abused her youngest
children with Minors’ assistance. CWW Walker-Lillard reported that Mother
forwarded the Agency a recording showing her younger children disclosing
abuse and a video of a file on Father’s old computer related to child
pornography. Mother acknowledged she had no physical proof to support the
sexual abuse allegations, but said “I just know, I have a feeling that
something has happened as [the younger children’s] behaviors have
changed.” Mother also claimed one of her younger children told her that K.D.
pushed a quarter into her “pee pee” during bath time. Mother asserted she
took her younger children to the hospital and showed CWW Walker-Lillard
the hospital paperwork. The hospital paperwork said nothing of sexual abuse
or suspected sexual abuse, and only stated the children were treated for
diaper rash.
Father told CWW Walker-Lillard that Mother had made these types of
allegations against him for years, the allegations were all proven untrue, and
he believes Mother is mentally unstable. Minors denied engaging in
inappropriate sexual conduct.
Specifically, K.D. denied putting quarters in her younger sibling’s “pee
pee,” putting a towel in her younger siblings’ mouths, or helping Father do
inappropriate things to her younger siblings. K.D. said Mother is mad at her
and makes “all sorts of allegations” when she is upset. K.D. discussed a prior
2 Aside from Minors, Mother has twins who were approximately four
years old at the time the petition was filed.
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incident when her younger brother “put his legs up in the air” and yelled
“look [K.D.],” to which Mother responded by telling K.D. that she needed to
have “an adult conversation with her” and then asked if “she did anything” to
her younger sibling. K.D. said “no” then cried in her room all day afterwards.
During this incident, Mother went into K.D.’s room and said “she would make
it hell for [K.D.] and that [K.D.] was ruining her kids . . . .”
O.D. also denied putting a towel in her younger siblings’ mouths,
denied holding her siblings down so Father could do inappropriate things to
them, and denied that K.D. put quarters into her younger sibling’s “pee pee.”
O.D. stated she does not feel safe at Mother’s home where there is “a lot of
yelling” leading to “huge fights,” and while Mother does not hit her, she
threatens to hit her and does hit the younger children. O.D. reported in July
2018, Mother threw her across a bed causing her to hit her head, and ever
since, she has not trusted Mother. Mother also accused her of stealing and
called her a “bad liar.” O.D. said she did not want to go back to Mother’s
home because of the way Mother treats her.
CWW Walker-Lillard spoke with the Oakland Police Department,
which reported Mother’s youngest children made no disclosures when
interviewed. CWW Walker-Lillard concluded Mother’s sexual abuse
allegations against Father were unfounded. CWW Walker-Lillard stated
“[t]he emotional harm related to the mother’s allegations is detrimental to
[O.D.’s] and [K.D.’s] well-being.”
In addition to the foregoing, the detention report recounted that CWW
Emily Carmona spoke with Mother’s therapist, who had been working with
Mother and her younger children since late April 2020. This therapist said
Mother’s youngest children were “presenting with behavioral difficulties
(night terrors, physical aggression with each other and the mother, tantrums,
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bed-wetting, defiance, sexualized behaviors, and anxiety).” The sexualized
behaviors of the younger children included their “hiding from their mother
and fondling each other.” Mother’s therapist said she did “not doubt that the
sexual abuse disclosure will present itself in her work with the family” and
she did not believe “[M]other’s mental health was impairing her judgment
related to the concerns around sexual abuse.”
The detention report also set out the family’s prior child welfare
history. The Agency indicated it received a referral for physical abuse in
February 2018 when O.D. reported Mother pushed her, causing her to fall
and hit her head. The Agency closed the referral as unfounded, though O.D.
had a bump on the back of her head. At that time, Minors also reported
Mother threatens to hit them if they do not do what she asks. Moreover, in
2012, the Agency investigated and concluded an allegation that Father was
sexually abusing Minors was unfounded; Minors did not disclose anything
when interviewed, hospital staff found no evidence of abuse, and the Oakland
Police Department did not find the allegations to be true.
At the detention hearing on June 30, 2020, Mother submitted to
temporary findings and the Agency’s recommendations for placement with
Father. Adopting the recommendations in the detention report, the juvenile
court detained Minors and found their initial removal was necessary because
there was a “substantial danger to the physical health of the children, or the
children are suffering severe emotional damage, and there are no reasonable
means to protect the children’s physical or emotional health without
removing them from the mother’s physical custody.”
B. Jurisdiction and Disposition
In July 2020, the Agency filed a report prior to the jurisdiction and
disposition hearing. In it, CWW Carmona indicated she asked Mother about
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prior allegations that Father sexually abused K.D. Mother said that while
she was changing K.D.’s diaper after a visit with Father, K.D. put her legs
around Mother’s neck and was laughing. This surprised Mother and
prompted her to take K.D. to a hospital. “CPS” was called but the case was
determined to be unfounded. Neither the hospital nor “CALICO” found
anything. Mother asserted the Oakland Police Department conducted a
sexual abuse investigation at some unspecified time, ran software on Father’s
computer and found one search for “ ‘child porn,’ ” but closed the investigation
thereafter without further intervention.
CWW Carmona asked Mother about the present allegations involving
Father and Mother’s youngest children. Mother apparently continued to
claim that Father sexually abused her younger children with Minors’ help.
Despite the younger children not disclosing any abuse when interviewed,
Mother believed a second interview would help them disclose it. Mother said
she did not believe Father was currently sexually abusing Minors because he
is “interested in younger children,” but she believed Father had “groomed and
coached” Minors.
CWW Carmona spoke with Minors, who said they felt safe with and
wanted to remain with Father and did not wish to visit Mother. O.D.
reported she likes Father’s house because there is “ ‘not that much yelling
and . . . not that many fights,’ ” and the yelling at Mother’s house “ ‘hurts her
ears a lot.’ ” O.D. denied anyone touching her inappropriately. K.D. stated
Father’s house is quiet, and though she always felt safe with Mother, she did
not like what Mother said and did not understand why she said those things.
K.D. disclosed no concerns regarding sexual abuse.
The report ultimately stated the Agency believed Mother “may have
underlying and untreated mental health issues that are causing her to think
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or believe things that may not be true” or that she may be experiencing stress
from raising two “very active 4 year olds.” The Agency expressed concern
about the “emotional impact” Mother’s allegations might have on Minors, and
the impact of repeated Agency involvement on Minors. The Agency
recommended, among other things, that the juvenile court make findings that
the allegations of the petition are true, that Minors are persons described by
section 300(b)(1), and that clear and convincing evidence required removal of
Minors from Mother’s physical custody to protect them.
At a hearing on July 24, 2020, Mother asked for a contested hearing,
which the juvenile court set for October 1, 2020. After indicating there was
an order for supervised visits but Minors refused to attend, Mother requested
therapeutic visits with Minors. The court granted Mother’s request for
therapeutic visitation, though it indicated no one could physically force
Minors to attend.
Prior to the October 1 hearing, the Agency filed an addendum report
indicating that Minors still did not want to visit Mother and were waiting for
an apology. The addendum also reported the following. Mother had started
therapy and so did K.D., but K.D. did not want to continue. O.D.’s therapist
told CWW Carmona that O.D. does not feel good about herself and feels like
she is walking on eggshells around Mother, and O.D. “does not explore her
relationship with her mother in therapy because it is ‘super painful.’ ” Father
reported an incident in mid-September 2020, during which Mother saw and
called to K.D. as K.D. was walking to a friend’s house, but K.D. got scared
and ran. Mother then drove in front of K.D. and cut off her path, but K.D.
ran around the car and continued to her friend’s house where she called
Father. K.D. confirmed this incident and said she was “ ‘hyperventilating’ ”
and “breathing super fast” when she saw Mother. The Agency’s
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recommendations remained the same as in the original jurisdiction and
disposition report.
On October 1, 2020, the juvenile court held a contested jurisdiction and
disposition hearing. The court admitted the Agency’s reports into evidence,
and the Agency asked the court to adopt its recommendations and proposed
custody orders. Minors and Father agreed with the recommendations.
Mother objected to the court “making a finding based on the allegations in
the petition,” but declined to present evidence and said she would “let the
[c]ourt enter a finding based on the reports.” Mother stated she agreed with
the proposed custody orders and was aware Minors did not want to visit, and
said she would be in touch with Father regarding changes in Minors’
willingness to visit.
After the parties submitted, the juvenile court discussed visitation,
stating it had “significant concerns,” specifically about the allegations that
Mother falsely accused Father of sexually abusing Minors’ younger siblings
with Minors’ help. The court indicated it would not alter the visitation orders
at that time, as it did not want to pressure Minors into visiting Mother.
The juvenile court then adopted the Agency’s recommendations.
Specifically, the court found that the allegations in the petition were true and
that Minors were persons described by section 300(b)(1). The court also
found clear and convincing evidence that Minors must be removed from
Mother’s physical custody because returning custody to Mother would cause
substantial danger to Minors’ physical health, protection, or physical and
emotional well-being, and there was no reasonable alternative means to
protect the children. The court granted Father custody of Minors and signed
written custody orders giving Mother supervised visitation with Minors on
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the first and third weekends of the month. The court then dismissed the
dependency matter. Mother filed a notice of appeal.
DISCUSSION
Mother contends substantial evidence does not support the juvenile
court’s jurisdiction findings and its order sustaining jurisdiction pursuant to
section 300(b)(1). On this record, we agree.
Section 300(b)(1) permits a juvenile court to take dependency
jurisdiction over a child if “[t]he child has suffered, or there is a substantial
risk that the child will suffer, serious physical harm or illness, as a result of
the failure or inability of his or her parent . . . to adequately supervise or
protect the child, . . . or by the inability of the parent . . . to provide regular
care for the child due to the parent’s . . . mental illness, developmental
disability, or substance abuse.” (Italics added.) “A jurisdictional finding
under section 300, subdivision (b)(1), requires [the child services agency] to
demonstrate the following three elements by a preponderance of the evidence:
(1) neglectful conduct, failure, or inability by the parent; (2) causation; and
(3) serious physical harm or illness or a substantial risk of serious physical
harm or illness.” (In re L.W. (2019) 32 Cal.App.5th 840, 848.)
“As appellate courts have repeatedly stressed, ‘ “[s]ubdivision (b) means
what it says. Before courts and agencies can exert jurisdiction under
section 300, subdivision (b), there must be evidence indicating that the child
is exposed to a substantial risk of serious physical harm or illness.” ’
[Citations.] . . . Section 300, subdivision (b) does not provide for jurisdiction
based on ‘ “emotional harm.” ’ ” (In re Jesus M. (2015) 235 Cal.App.4th 104,
111–112, italics in original and added.)
We review a juvenile court’s jurisdiction findings for substantial
evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.)
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In this case, even if we assume the factual allegations in the petition
are all supported by substantial evidence, there is no substantial evidence
supporting the third statutory element enumerated above, i.e., that Minors
have suffered serious physical harm or illness, or that there exists a
substantial risk of such harm or illness. (§ 300(b)(1).)
As Mother points out, the allegation that Mother threw O.D. in 2018
involved an incident that occurred more than two years before the contested
jurisdiction and disposition hearing. There is nothing in the record, however,
substantiating the existence of a substantial risk that such an incident would
recur. “While evidence of past conduct may be probative of current
conditions, the question under section 300 is whether circumstances at the
time of the hearing subject the minor to the defined risk of harm. [Citations.]
Thus the past infliction of physical harm by a caretaker, standing alone, does
not establish a substantial risk of physical harm; ‘[t]here must be some
reason to believe the acts may continue in the future.’ ” (In re Rocco M.
(1991) 1 Cal.App.4th 814, 824; see, e.g., In re Jesus M., supra, 235
Cal.App.4th at pp. 112–113 [domestic violence incidents occurring more than
three years earlier were not substantial evidence supporting a section 300(b)
finding where there was no evidence of current violent behavior].) Thus,
while the evidence reasonably establishes that Mother’s home is
tumultuous—e.g., O.D. reported “a lot of yelling” at Mother’s home leading to
“huge fights,” and K.D. reported there is no discipline in Mother’s home—
there is no evidence that Mother has ever inflicted any serious physical
injury on any of her children.3 Indeed, O.D. reported that Mother does not
3 Although O.D. sustained a “bump” on the back of her head after the
2018 throwing incident, no further detail is provided about that injury. It is
thus unclear whether this bump constituted a serious injury.
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hit her, and K.D. reported she does not think Mother would do anything to
intentionally hurt them and she always felt safe with Mother.
Although O.D. reported that Mother hits her younger children with her
hand, no further detail is provided about the nature of this hitting, such as
the amount of force Mother uses or when it has occurred. As such, even if it
were reasonable to infer that Mother’s use of force against her younger
children poses a substantial risk that she will use force against Minors, the
absence of any meaningful details regarding the force being used counsels
against relying on the inference as establishing a current substantial risk of
serious physical harm or illness to Minors. (In re Rocco M., supra, 1
Cal.App.4th at p. 824.)
Likewise, the allegation that Mother threatens to hit Minors falls short
of evidencing a current substantial risk that Minors will suffer serious
physical harm or illness.4 As stated, there is no evidence Mother has ever
inflicted any serious injury on any of her children. Although threatening to
hit a child could constitute emotional abuse, the Agency alleged dependency
jurisdiction only under section 300(b)(1), which does not authorize
jurisdiction because of emotional harm. (In re Jesus M., supra, 235
Cal.App.4th at p. 112.)
We acknowledge the troubling nature of the remaining allegations—
i.e., that O.D. refused to return to Mother’s home, that Minors were visibly
upset (crying, fidgeting) while discussing Mother, that Mother yells at Minors
4 We acknowledge there is substantial evidence that Mother threatens to
hit O.D. Specifically, the detention report reflects that O.D. told CWW
Walker-Lillard that Mother threatens to hit her. That said, there is no
substantial evidence that Mother presently threatens to hit K.D. Unlike
O.D., the detention report does not show K.D. reporting such a threat by
Mother to CWW Walker-Lillard. Instead, K.D. stated she did not think
Mother “would do anything to intentionally hurt them.”
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a lot and they are afraid of her, and that Mother falsely accuses Father and
Minors of things such as sexually abusing her youngest children—and the
resulting cause for concern particularly as to Minors’ emotional well-being.
Nonetheless, such allegations do not support a finding that Minors suffer
from or at substantial risk of serious physical harm or illness.
This ultimate conclusion is supported by the Agency’s detention report
and jurisdiction and disposition report. Under the heading “Future Risk,” the
reports state only that Minors “may have long-term mental health issues
(anxiety, depression, PTSD, and self-esteem issues) if their mother continues
to yell at them, make false accusations against them, and threaten them.”
Unfortunately, this case is like many others, where the courts have been
“repeatedly called on to review jurisdictional findings where . . . one parent
has behaved badly, undeniably causing family trauma, but presents no
obvious threat to the children’s physical safety.” (In re Jesus M., supra, 235
Cal.App.4th at p. 112.)
In an apparent effort to circumvent the deficiency of the jurisdiction
finding, the Agency contends the juvenile court could have found the “B-1b”
and “B-1c” allegations true under section 300, subdivision (c) (“300(c)”).
While that may be true, the contention provides no basis for affirming the
judgment.
A court may assert dependency jurisdiction under section 300(c) when
“[t]he child is suffering serious emotional damage, or is at substantial risk of
suffering serious emotional damage, evidenced by severe anxiety, depression,
withdrawal, or untoward aggressive behavior toward self or others, as a
result of the conduct of the parent or guardian or who has no parent or
guardian capable of providing appropriate care.”
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Whether or not section 300(c) could have provided a basis for
dependency jurisdiction, Mother’s due process rights may not be ignored. “[A]
parent whose child may be found subject to the dependency jurisdiction of the
court enjoys a due process right to be informed of the nature of the hearing,
as well as the allegations upon which the deprivation of custody is predicated,
in order that he or she may make an informed decision whether to appear
and contest the allegations.” (In re Wilford J. (2005) 131 Cal.App.4th 742,
751.)
Here, the Agency’s only alleged ground for dependency jurisdiction was
that Minors were children described by section 300(b)(1), and the Agency
acknowledges that the dependency petition included no allegation under
section 300(c). Minors and Father agreed to the Agency’s recommendations
that the juvenile court take jurisdiction under section 300(b)(1), but Mother
objected to the court finding jurisdiction based on the Agency’s reports.
Notably, the court never indicated it was relying on section 300(c) in making
its jurisdiction order, and nothing in the record indicates Mother had notice
or opportunity to defend against a section 300(c) allegation. (See In re
Andrew S. (2016) 2 Cal.App.5th 536, 543–544.)
We now assess whether a reversal is warranted. Reversal is
appropriate only where error is prejudicial i.e., where “ ‘ “ ‘it is reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.’ ” ’ ” (In re D’Anthony D. (2014) 230
Cal.App.4th 292, 303.) Here, there was evidence the children were
emotionally affected by Mother’s conduct. But a jurisdiction finding under
section 300(c) requires proof by a preponderance of the evidence that the
children are suffering or are at substantial risk for suffering “serious
emotional damage, evidenced by severe anxiety, depression, withdrawal, or
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untoward aggressive behavior toward self or others.” (§ 300, subd. (c), italics
added.) Significantly, at the contested hearing, no witnesses testified, and
none of the reports in evidence contained any statements or psychological
evaluations from medical professionals indicating that Minors were suffering
from “serious emotional damage” or were at risk of such. (See Nahid H. v.
Superior Court (1997) 53 Cal.App.4th 1051, 1070.) To the contrary, the
addendum report filed just before the contested hearing indicated that
“everything was going well” for Minors, and that neither had any worries at
that time. Moreover, had Mother been on notice of a section 300(c)
allegation, she might very well have presented expert and other evidence
credibly countering any allegation of serious emotional damage. On this
record, we cannot conclude the error was harmless.
In sum, the jurisdiction findings must be reversed. Such reversal, in
turn, necessitates reversal of the disposition orders. (In re Jesus M., supra,
235 Cal.App.4th at p. 114.) Having so concluded, we need not and do not
address Mother’s other arguments concerning the juvenile court’s jurisdiction
findings and the order removing Minors from Mother’s custody.
We end by noting that “[o]ur conclusion that the sustained allegations
of the petition do not support jurisdiction does not mean the [Agency] cannot
try again. Indeed, it is entirely possible valid grounds exist for the state to
assume jurisdiction over these children and indeed it may be in the children’s
best interests for this to happen.” (In re Janet T. (2001) 93 Cal.App.4th 377,
392.)
DISPOSITION
The orders of the juvenile court are reversed, and the matter is
remanded for further proceedings consistent with this opinion.
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_________________________
Fujisaki, Acting P. J.
WE CONCUR:
_________________________
Jackson, J.
_________________________
Wiseman, J.*
A161514
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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