In re S.C. CA1/4 ( 2021 )

Filed 9/13/21 In re S.C. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re S.C. et al., a Person Coming
Under the Juvenile Court Law.
SAN FRANCISCO HUMAN
SERVICES AGENCY,
A161711
Plaintiff and Respondent,
v. (City & County of San Francisco
Super. Ct. No. JD20-3175,
J.O.,
JD20-3175A)
Defendant and Appellant.
In this dependency action, J.O. (Mother) appeals jurisdictional and
disposition orders of the juvenile court declaring her two children dependents
and placing them in the home of their father. She contends on appeal that
the evidence was insufficient to declare her younger child, J.C., a dependent
and remove her from Mother, that the petition should have been dismissed as
to J.C., and that the visitation orders did not serve either child’s best
interests. We shall affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
The children in this case are S.C. and J.C., who were 13 and five years
old respectively at the time of the proceedings at issue. A dependency
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petition (Welf. & Inst. Code, § 300)1 was filed on July 10, 2020. As amended a
month later, the petition alleged that both S.C. and J.C. had suffered or were
at risk of serious physical harm inflicted nonaccidentally by a parent (§ 300,
subd. (a)) and serious physical harm through their parents’ failure to protect
them (§ 300, subd. (b)), and, as to S.C. only, that she was at risk of serious
emotional harm from Mother’s conduct (§ 300, subd. (c)).
Events Leading to Agency Intervention
The petition was filed after the San Francisco Human Services Agency
(the Agency) received a report that Mother had physically abused S.C. and
that J.C. was at risk of abuse. On June 29, 2020, S.C. and Mother became
involved in a physical altercation. According to the petition, Mother hit S.C.
with a broom and dustpan on her lower bottom, and S.C. used her hand to
block a blow. S.C. reported that Mother punched her, pulled her hair, and
spat on her face. S.C. tried to hit Mother in self-defense and she scratched
Mother under the eye. Mother called the children’s father, J.C. (Father) and
asked him to come home; when he did so, he and Mother agreed he would
take S.C. with him to work, but when he started to leave the home with S.C.,
Mother grabbed him to try to stop him from leaving and broke his eyeglasses.
Father took S.C. to the hospital because of pain in her finger. S.C. was found
to have no broken bones, but she had abrasions to both thighs, bruises with a
shape consistent with being struck with a stick, and scratches on both hands
and wrists.
Mother’s version of the June 29 incident was that she and S.C. argued
and the argument “got physical”; S.C. was angry and blocked her bedroom
door with a dresser, and she smashed a full-length mirror and sat on her bed
holding a shard of glass. Mother was frightened that S.C. might be
1 All statutory references are to the Welfare and Institutions Code.
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contemplating suicide, and she went into the room and started cleaning up
the shards of glass. S.C. punched Mother on the head, and Mother swatted
her off with a dustpan and held her down on the bed. Mother called Father,
who returned from work. Mother became angry at him, he screamed at her,
and she broke his glasses. She testified the bruises on S.C.’s legs might have
been caused by S.C. harming herself.
Mother and S.C. had been involved in another physical confrontation
several months previously, in which, according to S.C., Mother slammed
S.C.’s head on the kitchen counter. S.C. had a headache the next day. She
did not tell Father about the incident until months later, and when she did
so, he told her to tell him immediately if such a thing happened again.
J.C. was home at the time of the June 29 altercation. Father reported
that Mother did not have the same dynamics with J.C., who was five years
old and still being breast-fed, that she did with S.C. Father said Mother was
good with young children.
Father described Mother as irrational, saying she argued with
“everyone” and she was paranoid and suspicious that people were “after her.”
Mother told a social worker she was not willing to engage in family therapy
unless it was court-ordered. Father was willing to participate in therapy, and
he had been contacting his insurer and employment resources to secure
services.
Physical Altercation After Petition Was Filed
On the evening of July 31, 2020, Mother and Father argued, and
Mother threw a trash can at his leg in their bedroom, causing a laceration to
his shin. She later punched him on his arms, shoulders and back in S.C.’s
presence in S.C.’s bedroom, yelled at Father and S.C. and called them names,
and threw an open can of chili at S.C. The can hit the wall, and the chili
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splattered on S.C. S.C. positioned herself against the bedroom door to keep
Mother from coming in again. J.C., who was downstairs in the small
apartment, could hear Mother screaming and yelling and S.C. sobbing; she
intervened by asking Mother to take her for a walk and trying to pull her
outside.
Mother took the position that the July 31 incident was occasioned by
Father “bait[ing]” her by “giving [her] a hard time,” lying in bed “silently
smirking at [her],” and taking pictures. She admitted she threw a small
waste basket at Father. She acknowledged “knock[ing] over” the can of chili
on the windowsill of S.C.’s room because she was upset S.C. had left dirty
dishes outside her room and on the windowsill. She denied throwing
anything at S.C. and denied that her actions endangered anyone. She
thought J.C. asked her to go for a walk during the July 31 incident so she
could get away from the “abusive” behavior of Father and S.C.
Father called the police after the July 31 incident, Mother was
arrested, and an emergency protective order was issued. Mother told the
police she had only had a verbal argument with Father. Mother was released
three days later, and the charges against her were dismissed.
Father reported that Mother had “ ‘no off switch.’ ” He said that when
Mother became upset he and S.C. would go into another room, and J.C. would
interrupt Mother and ask to go on a walk.
S.C., who had a girlfriend, reported that Mother was homophobic and
targeted S.C., and that she called S.C. names such as “ ‘dike and traitor.’ ”
Detention and Restraining Order
The juvenile court temporarily detained the children from Mother and
placed them with Father under the Agency’s supervision. By the end of
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August 2020, Father had filed for divorce and Mother was residing in
Canada.
Father applied for and on August 27, 2020 was granted a three-year
restraining order protecting him and both children from Mother, but the
court ordered non-forced supervised visits between Mother and the children.
Mother did not appeal from this order.2
The children continued to live with Father. S.C. asked to be called by a
different name, with preferred pronouns of he/ze.3 Mother, who was still
living out of the country and had not reported any plans to return to the
United States, was visiting virtually with the children twice a week. By early
November S.C. had said he no longer wished to visit with Mother, but J.C.
enjoyed seeing Mother and the visits were positive.
Jurisdiction and Disposition
At the November 23, 2020 jurisdictional and dispositional hearing, the
trial court sustained counts alleging the children had suffered, or there was a
substantial risk they would suffer, serious physical harm or illness as a result
of the parents’ failure to protect them (§ 300, subd. (b)) and that S.C. was at
risk of serious emotional damage (§ 300, subd. (c)). It struck allegations that
2 The December 23, 2020 notice of appeal in this case recites it is from
temporary and permanent restraining orders, but it incorrectly states they
were issued on November 23, 2020, the same date as the jurisdictional and
dispositional orders we shall shortly discuss. Because the permanent
restraining order was issued on August 27, 2020, the notice of appeal was
untimely to the extent Mother purported to appeal from the restraining
order. (Cal. Rules of Court, rule 8.406.) In her brief on appeal, Mother raises
no issues as to the propriety of the restraining order except, indirectly, as to
its limitations on visitation with her children.
3For purposes of this opinion we will continue to use the initials S.C.,
which correspond to the name contained in the sustained petition, but will
henceforth refer to S.C. by the pronoun “he.”
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the children had suffered or were at risk of serious physical harm inflicted
nonaccidentally (§ 300, subd (a)) and that Father had been unsuccessful in
protecting S.C. from physical abuse by Mother. The court declared the
children dependents.
As to disposition, the court placed the children in Father’s home under
the Agency’s supervision. The court ordered family maintenance services for
Father, services his counsel said he welcomed and found helpful. The court-
ordered services included participation in a domestic violence assessment and
recommended treatment or support, individual therapy, and, if recommended
by the children’s therapist, family therapy.
S.C. told the court he did not want to have contact with Mother.
Supervised visitation was ordered between Mother and the children, the
visits with S.C. to take place “when it’s therapeutically appropriate, and
that’s going to be up to [S.C.’s] therapist.”
DISCUSSION
I. Evidence of Jurisdictional Findings
Mother challenges the sufficiency of the evidence to support the
allegations under section 300, subdivision (b)(1) and (c) that J.C. was at risk,
respectively, of serious physical harm from failure to protect and emotional
harm. She does not challenge the jurisdictional findings regarding S.C.
To establish jurisdiction under section 300, subdivision (b)(1), the
Agency “must prove by a preponderance of the evidence that there was
neglectful conduct by the parent . . . ; causation; and ‘ “serious physical harm
or illness” ’ to the child or ‘substantial risk’ of such harm or illness.” (In re
R.C. (2012) 210 Cal.App.4th 930, 941.)
Harm or risk for purposes of section 300, subdivision (b) may be shown
by a child’s exposure to domestic violence, even if not directed toward the
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child. “[D]omestic violence in the same household where children are living is
neglect; it is a failure to protect [the children] from the substantial risk of
encountering the violence and suffering serious physical harm or illness from
it. Such neglect causes the risk.” (In re Heather A. (1996) 52 Cal.App.4th
183, 194.) The court in Heather A. explained that the danger from domestic
violence could come from “wander[ing] into the room where it was occurring
and be[ing] accidentally hit by a thrown object, by a first, arm, foot or leg, or
by [someone] falling against them.” (Ibid.; accord In re R.C., supra, 210
Cal.App.4th at pp. 941–942 [following Heather A. and noting detriment to
children from spousal abuse in household, even if child does not witness it].)
Although there is no indication that violence was directed toward five-
year-old J.C., the evidence is sufficient to support a finding she was at risk of
harm from Mother’s physically violent altercations with S.C. and with
Father. J.C. was in the family’s small apartment at the time of at least two
such episodes. She was downstairs during the June 29, 2020 incident when
Mother hit S.C. with a broom and dustpan hard enough to cause bruises and
abrasions and broke Father’s eyeglasses. J.C. was again downstairs a month
later when Mother threw a trash can at Father in the couple’s bedroom, then
hit and punched Father in S.C.’s bedroom and threw a can of chili at S.C.;
J.C. heard the events and tried to intervene by trying to pull Mother out for a
walk. The juvenile court could reasonably conclude that domestic violence in
the home placed J.C. at risk of physical harm either by being in the same
room while hard objects and blows were being thrown or by trying to
intervene to halt the violence.
Mother also argues the evidence does not support an assumption of
jurisdiction over J.C. on a theory she was at risk of suffering serious
emotional harm. (§ 300, subd. (c).) This contention is meritless. First, we
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have already concluded the court properly took jurisdiction of J.C. under
subdivision (b), and we therefore need not consider whether any other
grounds for jurisdiction are supported by the evidence. (In re I.J. (2013) 56
Cal.4th 766, 773.)
The more fundamental reason Mother’s argument fails is that the
petition’s subdivision (c) allegation of emotional harm applies only to S.C.,
not to J.C. The petition contains separate information pages for the two
children. On the page with S.C.’s name and identifying information, the
boxes for subdivisions (a), (b)(1), and (c) are marked where the form asks
what subdivisions are the bases for jurisdiction, but the page with J.C.’s
name and information has marks only on the boxes for subdivisions (a) and
(b)(1). And while the header of the pages containing the subdivision (a) and
(b) allegations contain the names and case numbers of both children, the page
with the subdivision (c) allegation contains only S.C.’s name and case
number. Although the court stated before making its ruling that both
children were at risk of emotional harm, there is no indication the petition
was amended to add a subdivision (c) allegation as to J.C. Since there were
no emotional harm allegations regarding J.C., the court’s finding that “all the
allegations other than the A allegations are true” can refer only the
allegations that were actually pled regarding J.C., allegations that did not
include emotional harm.
II. Dismissal of the Petition as to J.C. Was Not Required
Mother contends the juvenile court abused its discretion in declaring
J.C. a dependent rather than dismissing the petition as to her. According to
Mother, the juvenile court could have protected J.C. without court
intervention by placing her either in Mother’s care or in the parents’ shared
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custody. This claim fails, both because it was forfeited in the trial court and
on the merits.
Section 390 provides that a juvenile court may dismiss a petition if it
finds that the interests of justice and the welfare of the child require the
dismissal and that the parent is not in need of treatment or rehabilitation.
Dismissal is appropriate only if the court makes both of these findings, and
“ ‘such dismissals are rare and usually occur only when the goal of protecting
the child has been achieved without court intervention.’ ” (In re Carl H.
(2017) 7 Cal.App.5th 1019, 1038–1039.) We review an order denying a
request to dismiss a dependency petition for abuse of discretion. (In re K.S.
(2016) 244 Cal.App.4th 327, 339–340; In re Destiny D. (2017) 15 Cal.App.5th
197, 207.)
Mother did not ask the juvenile court to dismiss the petition as to J.C.
once it found J.C. fell within section 300, subdivision (b)(1). She has
accordingly forfeited the issue. The general rule that “a reviewing court
ordinarily will not consider a challenge to a ruling if an objection could have
been but was not made in the trial court” applies to dependency matters. (In
re S.B. (2004) 32 Cal.4th 1287, 1293.) Mother argues the rule of forfeiture
does not apply to challenges to the sufficiency of the evidence (In re P.C.
(2006) 137 Cal.App.4th 279, 287–288), but our inquiry here is not into
whether substantial evidence supports the juvenile court’s action but whether
the court abused its discretion in failing to grant a motion that was never
made. (In re K.S., supra, 244 Cal.App.4th at pp. 339–340; see In re Ana C.
(2012) 204 Cal.App.4th 1317, 1326 [rule of forfeiture appropriately applied to
“fact-driven issue in which the trial court exercises its discretion”].)
In any event, even if the issue is not forfeited there was no abuse of
discretion. We have already concluded the evidence supports the juvenile
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court’s finding that J.C. is a child described by subdivision (b)(1) of section
300. As explained in In re E.A. (2018) 24 Cal.App.5th 648, 665, the inquiry
into whether a petition should be dismissed under section 390 is not limited
to “the four corners of the petition,” and if children are described under
section 300, “dismissal would clearly not be in the interests of justice or
consistent with their welfare.” Although the court struck allegations of
Father’s neglect, the evidence shows he engaged in angry confrontations with
Mother while J.C. was in the home, and he welcomed the services—which
included therapy and a domestic violence assessment—that were being
provided to assist him and the children. Even if the issue had been preserved
for appeal, the juvenile court could reasonably conclude Father was in need of
treatment and rehabilitative services to assist him in caring safely for both
children. It did not abuse its discretion in declaring J.C. a dependent and
ordering services.
III. Removal of J.C.
Mother next argues the evidence does not support a finding under
section 361, subdivision (c) that J.C. should be removed from her care. Under
that provision, a dependent child may not be taken from the “physical
custody of his or her parents . . . with whom the child resides at the time the
petition was initiated” unless the court makes one of several removal findings
by clear and convincing evidence; one of those findings is that there would be
a substantial danger to the child’s physical health, safety, protection, or
physical or emotional well-being if the child were returned home and there
are no other reasonable means to protect the child’s physical health. (§ 361,
subd. (c)(1).) As an alternative to removal, the court may consider removing
an offending parent from the home or allowing a nonoffending parent to
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retain physical custody with a plan to protect the child. (§ 361, subd. (c)(1)(A)
& (B).)
The juvenile court neither removed the children from the home nor
made findings supporting removal from Mother under section 361,
subdivision (c). Rather, it placed the children at home with Father and
ordered family maintenance services. Mother’s exclusion from the family
home and limited access to the children result from the restraining order,
which she did not appeal. In support of her argument that the children were
removed, Mother notes that on the written dispositional order, there are
checks by the boxes indicating that the facts on which the decision to remove
the children are found in the sustained petition and that reasonable efforts
had been made to prevent the need to removal. But, notably, the court did
not check any of the boxes for the section 361, subdivision (c) findings
supporting removal and it did not state it was removing the children from
Mother. The notations to which Mother refers do not show the children were
removed from her under section 361, subdivision (c).
We recognize it is possible to enter orders both restraining a parent
from contact with a child and removing the child from that parent’s custody,
and this may be particularly appropriate when the parents maintain
separate residences. (In re Michael S. (2016) 3 Cal.App.5th 977, 984–985.)
But, as Michael S. acknowledges, under section 361 a removal order may be
unnecessary when the child can be protected by placing the child with only
the nonoffending parent. (Id. at pp. 983–984, citing § 361, subd. (c)(1)(A) &
(B); accord, In re D.P. (2020) 44 Cal.App.5th 1058, 1068–1069.) That is what
the juvenile court did here. Because it did not make an order removing J.C.
from Mother, we need not consider the sufficiency of the evidence to support
the findings that would be required.
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IV. Visitation
Mother’s final contention is that the juvenile court improperly limited
her visitation with the children. When a court adjudges a child a dependent
under section 300, it may “make any and all reasonable orders” for the child’s
care, supervision, and custody. (§ 362, subd. (a); In re Briana V. (2015) 236
Cal.App.4th 297, 311.) We review the visitation orders for abuse of discretion
(In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095), which Mother has
not shown.
When it issued the restraining order on August 27, 2020, the juvenile
court ordered supervised virtual visitation between Mother (who was living
in Canada) and the children, with supervised in-person visits when
appropriate in light of the COVID-19 pandemic. Before making its
dispositional orders, the court asked S.C. about his wishes for contact with
Mother, and S.C. said he did not want contact. The court told S.C. that while
he “has a voice in these proceedings[,] . . . there will come a time hopefully
sooner rather than later that you will want to have some visitation with your
mother.” The court again ordered supervised visits, which S.C. “can work up
to with his mother with appropriate therapy.” The clerk asked for
clarification of whether the supervised visits would take place “when the
minors are ready” and the court answered, “Well, the supervised visits when
it’s therapeutically appropriate, and that’s going to be up to [S.C.]’s
therapist.” The court went on, “But . . . the order is that they do happen.”
The court asked S.C. if he understood why it was ordering visits, and S.C.
replied, “Yeah, kind of.” The court continued, “Does that make sense?” and
S.C. answered, “Yeah.”
Mother contends the visitation the court ordered was inadequate,
particularly as to S.C., which she characterizes as a “near elimination of
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visitation.” And, she argues, the limited visitation that was ordered risks
alienating the children from her, making it more difficult for her to reunite
with them.
We see no abuse of discretion in the juvenile court’s ruling. Visitation
is “ ‘an essential part of a reunification plan.’ ” (In re Korbin Z. (2016)
3 Cal.App.5th 511, 517.) Here, of course, the children were not removed from
their home with reunification services; rather, they were placed at home in
Father’s care with family maintenance services. And in fact, Mother was
provided with visitation. She was subject to a restraining order, which
“carve[d] out” an exception for supervised visitation. She was visiting
virtually with J.C. twice a week—during which S.C. would “stop by to say hi”
to her—and she does not show that the dispositional order altered the
frequency of these visits, that they were inadequate for her to maintain a
relationship with J.C., or, for that matter, that she sought more frequent
visits. Mother points out correctly that the written dispositional order
provides for supervised visits “when therapeutically appropriate as directed
by the minors’ therapist,” but in the context of the oral record of proceedings,
it is clear this limitation applies only to S.C. As to J.C., Mother has not
shown she has been deprived of adequate visitation, nor that she has sought
and been denied increased visitation.
As to S.C., Mother argues that the juvenile court improperly left to the
minor or his therapist the decision whether visitation would take place at all.
(See In re Korbin Z., supra, 3 Cal.App.5th at pp. 516–517; In re Brittany C.
(2011) 191 Cal.App.4th 1343, 1357–1358.) Mother is correct that “the
juvenile court cannot delegate the decision whether visitation will occur to
any third party, including the child, the social services agency, or” the child’s
therapist. (Korbin Z., at p. 516.) But a visitation order may delegate
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“ ‘responsibility for managing the details of visits, including their time, place
and manner.’ ” (Id. at p. 517.) We are unconvinced that the court here
transgressed this legal standard. The record shows that the court sought to
persuade S.C. to participate in visits voluntarily and that it delegated to the
therapist the decision as to when exactly such visits were therapeutically
appropriate, but the court also made clear that visits with S.C. must in fact
occur. Although there is some ambiguity in the record, we conclude mother
has not established the court abused its discretion in this ruling. Nothing we
say, however, prevents Mother from raising the issue of visitation in further
proceedings, if circumstances change (or have changed) or if regular
visitation with S.C. has not taken place despite the juvenile court’s order.
DISPOSITION
The November 23, 2020 orders are affirmed.
TUCHER, J.*
WE CONCUR:
STREETER, Acting P.J.
BROWN, J.
In re S.C. (A161711)
Presiding Justice of the Court of Appeal, First Appellate District,
*
Division Three, sitting by assignment pursuant to article VI, section 6 of the
California Constitution.
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