In re A.M.C. CA6 ( 2021 )

Filed 9/22/21 In re A.M.C. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re A.M.C., a Person Coming Under the H047283
Juvenile Court Law. (Santa Clara County
Super. Ct. No. JD025486)
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,
Plaintiff and Respondent,
v.
S.W. et al.,
Defendants and Appellants.
THE COURT1
Six-year-old A.M.C. has been a dependent of the juvenile court since 2019. S.W.
is his mother (Mother) and A.C. III is his father (Father). Mother and Father appeal the
juvenile court’s findings made at the Welfare and Institutions Code2 section 387
jurisdiction and disposition hearing held on September 10, 2019.
Mother and Father argue the juvenile court violated their due process rights when
it amended an allegation in the supplemental petition to conform to proof. Father also
1
Before Greenwood, P. J., Grover, J. and Danner, J.
2
All further unspecified statutory references are to the Welfare and Institutions
Code.
argues there was insufficient evidence to support the juvenile court’s jurisdiction finding
as to four counts in the petition, and Mother argues there was insufficient evidence as to
the amended count in the petition.
Mother and Father both argue that there is not substantial evidence to support the
juvenile court’s order removing A.M.C. from their custody.
We find the juvenile court did not err when it amended the supplemental petition
to conform to proof, and there is substantial evidence to support the juvenile court’s
jurisdiction findings as to both parents. We also find there is substantial evidence to
support the juvenile court’s order removing A.M.C. from the parents. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND3
1. Section 300 Petition
Due to ongoing domestic violence between the parents in the presence of then
three-year-old A.M.C., and the parents’ substance abuse, the Department filed a section
300 petition on November 26, 2018. The petition alleged that A.M.C. was at serious risk
of physical and emotional harm because Mother and Father engaged in domestic violence
in his presence, and from the parents’ ongoing substance abuse.
At the initial hearing on November 28, 2018, the juvenile court found A.M.C. was
a child described by section 300 and that continuing in Mother’s care was contrary to his
welfare. The juvenile court ordered that A.M.C. remain in the care of Father, who was
living with the paternal grandparents.
2. February 5, 2019 Jurisdiction and Disposition Hearing
The reports prepared for the February 5, 2019 jurisdiction and disposition hearing
stated that Father completed a drug assessment during which he said he had been clean
and sober for five years. He relapsed in December 2018 when he used
methamphetamine. Father tested positive for methamphetamine on December 14 and
3
We carefully considered the complete record in this case and include only those
facts that are relevant to the issues presented in this appeal.
2
December 17, 2018, and failed to take three other drug tests between December 18, 2018,
and January 2, 2019. The substance abuse evaluator referred him to an outpatient drug
treatment program. The outpatient program evaluated Father and found that he did not
meet the criteria for treatment because he had only used drugs once in six years and he
was not functionally impaired due to substance abuse. Father tested negative for drugs
five times in January. Father missed two scheduled drug tests.
The social worker reported that she believed that A.M.C. was safe in Father’s care
with the support of the paternal grandparents. The social worker also believed that
A.M.C. would be safe in Mother’s care.
At the jurisdiction and disposition hearing on February 5, 2019, Mother and Father
submitted on the petition. The juvenile court sustained the petition and declared A.M.C.
a dependent of the juvenile court. The juvenile court ordered that the Department
provide family maintenance services and that Mother continue to live with the maternal
aunt and Father live with the parental grandparents.
The juvenile court ordered Mother to complete a parent orientation, a 16-week
parenting without violence class, counseling to address domestic violence, a substance
abuse assessment and recommended treatment, random drug testing, a 12-step program
and an aftercare program. The juvenile court also ordered Father to complete a 16-week
parenting without violence class, therapy to address the effects of addiction and violence
on A.M.C., and random drug tests.
3. April 2019 Section 387 Supplemental Petition
In April 2019, the Department filed a supplemental petition under section 387
seeking removal of A.M.C. from Mother because of her ongoing substance abuse. The
Department recommended that Mother receive reunification services and Father receive
family maintenance services.
The social worker reported that between February and April 2019, Mother tested
positive for methamphetamine three times, missed ten drug tests, had three dilute tests,
3
one negative test, and was unable to produce a sample four times. Mother completed a
drug and alcohol assessment and started an outpatient drug treatment program on March
18, 2019, but quit shortly thereafter. Mother told the social worker that she had been
attending a 12-step program but did not provide proof of her attendance. In March and
April 2019, Mother tested positive for drugs three times, missed her tests three times, and
could not produce an adequate sample four times. By May, however, Mother had three
negative drug tests.
Mother started individual therapy in March 2019, but quit because she did not
believe the therapist had enough experience. Mother would not participate in a
psychological evaluation. Mother started with a new therapist in April 2019.
Mother missed the parent orientation held in April 2019. She had enrolled in the
parenting without violence class but was dropped from the class after missing two
sessions. Mother was scheduled to begin the class again in June 2019 and was on a wait
list for a domestic violence support group.
On April 25, 2019, the juvenile court detained A.M.C. from Mother.
4. June 2019 Section 387 Supplemental Petition
On June 25, 2019, the Department filed a supplemental petition under section 387
seeking to remove A.C. from Father. The supplemental petition alleged six counts
summarized as follows: S-1: Father failed to participate in family maintenance services
after A.C. was removed from Mother in April 2019 and placed with Father; S-2: Father
failed to consistently drug test; S-3: Father failed to participate in his parenting classes
and counseling for domestic violence; S-4: Father failed to participate in substance abuse
treatment; S-5: Mother failed to consistently drug test and had untreated substance abuse
issues; S-6: Mother failed to participate in her family reunification services.
The social worker believed that Father’s failure to address his substance abuse
issues and his lack of participation in family maintenance services placed A.M.C. at risk
of harm. Father had not been attending his individual therapy or 12-step meetings.
4
Father’s drug tests were inconsistent. He tested positive on February 22, 2019, missed a
drug test on March 12, 2019, and then had several negative tests. Father missed two drug
tests in May 2019 and had a diluted test on June 10, 2019.
A.M.C. was having emotional difficulties and was acting out by having tantrums.
A.M.C. had a hard time staying calm. A behavioral specialist from Community Solutions
was working with A.M.C. and his grandparents in their home. The social worker
believed that A.M.C. was acting out because of the chaos and domestic violence he had
witnessed between his parents.
Father told the social worker that he was overwhelmed caring for A.M.C. Father
had not been meeting with A.M.C.’s care providers at Community Solutions.
At the June 26, 2019 detention hearing on the section 387 petition, the juvenile
court ordered A.M.C. removed from Father’s care.
5. Contested Hearing on Supplemental Petition
A contested jurisdiction and disposition hearing on the supplemental petition was
held on August 30, 2019, and September 10, 2019.
The Department prepared several status reports for the contested hearing. The
reports stated that Mother had completed the Mariposa inpatient substance abuse
treatment program and had tested negative since the date she entered the program on June
7, 2019. Mother was attending weekly therapy sessions and was also seeing a
psychiatrist for mental health treatment.
Mother’s visits with A.M.C. had been going well. Mother participated in
supervised visits with A.M.C. three times per week for two hours at a time. Mother was
appropriate with A.M.C., provided good boundaries and had a strong bond with him.
Mother had made progress in her plan but was still in the early stages of substance
abuse recovery. The social worker was concerned that returning A.M.C. to Mother’s care
would be premature, and could affect the positive progress A.M.C. had made while
placed with his paternal grandparents.
5
Father had been re-referred to the parent orientation since the last court date.
Father had not yet begun therapy to address his mental health needs. Father tested
negative on June 21 and June 25, 2019, but missed a test on July 1, 2019. Between July 9
and August 26, 2019, Father tested negative on three drug tests, provided an insufficient
sample for two tests, missed two tests, and provided a diluted test once.4
As part of his case plan, Father was required to participate in therapy to address
addiction and substance abuse and the impact of domestic violence on children. The
social worker had referred Father to a therapist, but Father did not attend his
appointments. Father complained to the social worker about the therapist’s location, so
the social worker provided him with a list of other therapists near him and told Father to
choose one. Father did not choose a therapist and did not obtain other mental health
treatment.
The social worker noted that the parents had not yet demonstrated an ability to
refrain from domestic violence, and placing A.M.C. in either of their care under the
circumstances would not be safe. The social worker believed the parents should have
more time to participate in the conflict and accountability class and Mother should
participate in domestic violence support groups before A.M.C. could safely be returned to
the parents’ care. The social worker recommended that both parents receive family
reunification services.
At the contested hearing on August 30, 2019, the Department called Mother as an
adverse witness. Mother testified that she completed the Mariposa inpatient substance
abuse treatment program and graduated in August 2019. Mother started therapy in April
and had seen her first therapist four times and her current therapist three times. Mother
testified that she was currently living in a Solace House, which is a sober living
4
In his opening brief, Father cites information from “Healthnet.com” about the
cause of diluted drug tests. This information is not part of the record on appeal;
therefore, we will not consider it. (In re B.D. (2008) 159 Cal.App.4th 1218, 1239.)
6
environment. She also stated that there was a family bed available at Solace House if
A.M.C. were returned to her. Mother said that she had been attending 12-step meetings
every day since her graduation from Mariposa but had not provided verification of
attendance to her social worker.
Mother testified that she was taking Suboxone for drug addiction and was
attending Suboxone support groups. She said she was testing three times per week.
Mother had not yet completed the parent orientation but was scheduled to start the
conflict and accountability class soon. Mother was communicating with her social
worker regularly; however, she felt her social worker was not providing her adequate
support. Mother had been asking her social worker if she could have unsupervised visits
with A.M.C.
Mother testified that she believed she was doing what she needed to do to have
A.M.C. returned to her. Mother believed that if A.M.C. was returned to her, she would
remain clean and sober.
Social worker Christina Zarrabi testified and recommended that A.M.C. remain in
the home of the paternal grandparents and reunification services be provided for both
parents. Mother was making progress in her treatment program. Mother’s last positive
drug test was on June 7, 2019, the day she entered the Mariposa treatment program.
Mother completed Mariposa on August 26, 2019, and moved into a sober living house.
Mother had been taking Suboxone since June and was consistently testing negative.
Ms. Zarrabi testified that because Mother was in an early stage of recovery, she
was very vulnerable to relapse. Ms. Zarrabi wanted to see Mother continue to test clean
and follow all the rules of her sober living environment. Ms. Zarrabi was concerned
about Mother’s ability to safely care for A.M.C. because she had been sober for such a
short time.
As part of the reunification plan, Ms. Zarrabi wanted the parents to attend a
conflict and accountability class to address their ongoing domestic violence. Mother had
7
completed the intake for the class and recently started attending the class. She also
wanted Mother to attend a domestic violence support group. To Ms. Zarrabi’s
knowledge, there had been no domestic violence incidents between the parents since May
23, 2019.
Ms. Zarrabi testified that A.M.C. was bonded to both parents and loved them very
much; however, A.M.C. was showing aggressive and angry behavior that could have
been caused by exposure to domestic violence between the parents. While A.M.C. was in
his parents’ care, his medical and dental care was not current, and he was not consistently
attending therapy. Ms. Zarrabi testified that the public health nurses had difficulty
scheduling appointments for A.M.C. with the parents.
Ms. Zarrabi testified that since A.M.C. had been being cared for by the paternal
grandparents, he had been attending all his medical and therapy appointments. A.M.C.’s
therapist believed that he was in a stable placement and was making progress. Ms.
Zarrabi believed that it would be premature to return A.M.C. to his parents because it
could hinder the progress A.M.C. had made so far.
6. Order of the Juvenile Court
At the conclusion of the contested hearing, the juvenile court found true the
allegations in the supplemental petition as to Father stated in S-1 through S-4. The
juvenile court amended the allegations in S-5 to include a statement that Mother was
early in recovery from substance abuse.
As to the allegations in S-6, which originally addressed Mother’s failure to
participate in family reunification services, the juvenile court struck the allegations
entirely, and added in its place a new allegation as to Mother and Father’s care of A.M.C.
The allegations in the original S-6 were as follows: “Further, the mother has been court-
ordered to participate in child welfare services since 02/05/2019 based in part on her
substance abuse and its negative impact on her ability to parent the child, and has been
provided with referrals and support to participate in those services which have included
8
parent education, counseling, drug testing, attend a 12-step program, complete a
substance abuse assessment and follow its recommendations, participate in an aftercare
relapse prevention plan. The mother has had inconsistent engagement with the services
and despite being provided services to address her substance abuse issues, the mother has
continued to abuse substances since the child was returned to her care on 02/05/2019
under a plan of family maintenance services. The mother’s ongoing substance abuse,
failure to engage in court-ordered Family Maintenance Services and poor insight and
judgment regarding her addiction places the child at serious risk of harm in her care.”
The newly amended allegations in S-6 state: “[A.M.C.’s] health and mental health needs
were not being met while he was in the custody of the mother and/or the father.”
The juvenile court concluded that A.M.C. would be at substantial risk of harm if
he were to return to his parents. The juvenile court noted that Mother had a long history
of substance abuse and was still very early in her recovery. The juvenile court also noted
that Father was not consistently meeting with A.M.C.’s care providers and did not
recognize that A.M.C. needed mental health treatment.
The juvenile court found by clear and convincing evidence that A.M.C.’s welfare
required that his physical custody be removed from Mother and Father, that there were no
reasonable means to protect A.M.C. without removal, and reasonable efforts had been
made to prevent removal. The juvenile court ordered family reunification services for
Mother and Father.
Mother and Father filed timely notices of appeal in September 2019.
II. DISCUSSION
On appeal, Mother and Father argue the juvenile court violated their due process
rights when it amended the allegations in S-6 of the supplemental petition to conform to
proof. Father also argues the evidence is insufficient to support the allegations in S-1
through S-4 of the supplemental petition that he failed to participate in services and had
9
not adequately addressed his substance abuse issues and Mother argues there is
insufficient evidence to support the allegations in S-6. Finally, Mother and Father argue
there is not clear and convincing evidence that removal of A.M.C. was required to keep
him safe.
1. Amendment of Section 387 Petition to Conform to Proof
“ ‘A parent’s fundamental right to adequate notice and the opportunity to be heard
in dependency matters involving potential deprivation of the parental interest [citation]
has little, if any, value unless the parent is advised of the nature of the hearing giving rise
to that opportunity, including what will be decided therein. Only with adequate
advisement can one choose to appear or not, to prepare or not, and to defend or not.’
[Citation.]” (In re Wilford J. (2005) 131 Cal.App.4th 742, 746, italics added; see also In
re Jessica C. (2001) 93 Cal.App.4th 1027, 1037 (Jessica C.) [“In the initial ‘pleading’
stage, the role of the petition is to provide ‘meaningful notice’ that must ‘adequately
communicate’ social worker concerns to the parent.”].)
“[Welfare and Institutions Code] [s]ection 348 provides that provisions in the
Code of Civil Procedure relating to variance and amendment of pleadings in civil actions
apply to juvenile dependency petitions and proceedings. Amendments to conform to
proof are permitted, but material amendments that mislead a party to its prejudice are not
allowed. (Code Civ. Proc., §§ 469-470.)” (In re Andrew L. (2011) 192 Cal.App.4th 683,
688-689.)
In dependency proceedings, as in civil law in general, “amendments to conform to
proof are favored, and should not be denied unless the pleading as drafted prior to the
proposed amendment would have misled the adversarial party to its prejudice.” (Jessica
C., supra, 93 Cal.App.4th at p. 1042.) But “[i]f a variance between pleading and
proof . . . is so wide that it would, in effect, violate due process to allow the amendment,
the court should, of course, refuse any such amendment.” (Id. at pp. 1041-1042, citations
omitted.) “Amendments of pleadings to conform to the proof should not be allowed
10
when they raise new issues not included in the original pleadings and upon which the
adverse party had no opportunity to defend. [Citations.]’ [Citations.]” (Trafton v.
Youngblood (1968) 69 Cal.2d 17, 31 (Trafton).)
a. Forfeiture
“An appellate court generally will not consider a challenge to a trial court’s ruling
if the aggrieved party could have, but did not, timely object in the trial court when its
purported error could easily have been corrected. [Citations.] However, ‘[a]pplication of
the forfeiture rule is not automatic.’ [Citations.] An appellate court has discretion to
excuse forfeiture in cases involving important legal issues. [Citation.] (In re M.S. (2019)
41 Cal.App.4th 568, 588-589 (M.S.).)
Citing this court’s decision in In re Daniel C.H. (1990) 220 Cal.App.3d 814, the
Department argues Mother and Father forfeited their due process appellate challenge to
the amendment of the allegation in S-6 because they did not raise due process objections
in the juvenile court. The Department notes that Father did not object to the amendment
and instead argued there was not sufficient evidence to support the allegation. Mother
did object to the amendment but her stated reason for doing so was that the evidence was
insufficient to support the amendment. The Department asserts these objections were
insufficient to preserve the due process issue for appeal.
Here, while Mother and Father did not specifically object to the amendment on
due process grounds, they objected to the substance of the amendment. We will exercise
our discretion to consider the due process issue on appeal. (See, M.S., supra, 41
Cal.App.4th at pp. 588-589.)
b. Merits
The amendment according to proof added allegations of the parents’ inadequate
care of A.M.C. in S-6, which the parents assert was based on a new theory and required
proof of different facts than those alleged in the supplemental petition. The original
allegations in the petition related to the parents’ poor participation in their case plans and
11
their continued substance abuse; there was nothing alleged in the supplemental petition
related to A.M.C.’s care. Evidence of the parents’ care of A.M.C. was introduced
through the social worker’s testimony that A.M.C. was not participating regularly in
therapy, and he was not attending his medical and dental appointments. The social
worker also testified that the public health nurses had difficulty scheduling appointments
with the parents.
The parents argue they had no notice that their care of A.M.C. would be an issue
at the hearing on the supplemental petition. Therefore, they were not prepared to present
evidence at the hearing to counter the allegation of their insufficient care. The record,
however, belies this point. Although the issue of A.M.C.’s care was not specifically
alleged in the supplemental petition, the Department’s status reports that were admitted
into evidence without objection, as well as the court’s orders, provided sufficient notice
to the parents that A.M.C.’s care would be an issue for the court in evaluating A.M.C.’s
best interests. For example, the Department’s first report for jurisdiction and disposition
indicated that the parents’ acknowledged that A.M.C. needed therapy to address his
mental health needs and that the Department was referring A.M.C. to the public health
nurse. The February 2019 status report indicated that Father no longer believed that
A.M.C. needed therapy and that the child was not affected by domestic violence between
the parents because he never witnessed the conflict. The report also stated that Father
had missed A.M.C.’s appointment with the public health nurse even though the
appointment had been rescheduled for him. The May 2019 status report stated that
A.M.C. was not current with his medical and dental appointments. The June 2019 status
report stated that Father was not meeting with A.M.C.’s providers from Community
Solutions and was overwhelmed caring for A.M.C. The July 2019 status report indicated
that A.M.C. was not current with his medical and dental appointments and that the
paternal grandparents were in the process of scheduling appointments for the child and
beginning to work with A.M.C.’s providers at Community Solutions.
12
Additionally, the court’s February 2019 family maintenance order specifically
required both parents to ensure that A.M.C. receive therapy and regular medical and
dental care. The order also required the parents to cooperate and work with the public
health nurse for A.M.C.’s care. The Department’s June 2019 application for a protective
custody warrant to remove A.M.C. from Father specifically stated that Father had been
unable to address A.M.C.’s behavioral needs because he did not respond to A.M.C.’s
providers at Community Solutions.
The allegations in the amendment of S-6 are consistent with all the reports
submitted by the Department in the months leading up to the hearing and the family
maintenance orders of the juvenile court. The parents had ample notice that their care of
A.M.C. was an issue in the case. Because the allegations in the amendment of S-6 do not
“raise new issues not included in the original pleadings and upon which the adverse party
had no opportunity to defend. [Citations.]’ [Citations.],” (Trafton, supra, 69 Cal.2d at p.
31 (emphasis added)), we find the parents’ due process rights were not violated.
2. Jurisdiction and Disposition
Father challenges the juvenile court’s jurisdiction findings in S-1 through S-4 of
the supplemental petition that he failed to participate in family maintenance services, did
not consistently submit to drug tests, did not complete his parenting class or participate in
therapy and failed to address his substance abuse issues. Mother challenges the juvenile
court’s finding in S-6 that she failed to properly care for A.M.C.5
Both parents challenge the juvenile court’s disposition order removing A.M.C.
from their custody.6
5
Father does not challenge the juvenile court’s finding in S-6.
6
In her opening brief, Mother notes that A.M.C. has since been returned to her
care with family maintenance services. We find the issue of A.M.C.’s removal is not
moot and consider it on appeal, because the period that A.M.C. was removed from
Mother counts toward the period for reunification versus family maintenance services in
this dependency case. (See § 361.5, subd. (3)(A); In re Michael S. (1987) 188
13
a. Standard of Review for Jurisdiction
A jurisdiction order is reviewed for substantial evidence. (In re Yolanda L. (2017)
7 Cal.App.5th 987, 992.) The reviewing court “view[s] the record in the light most
favorable to the juvenile court’s determinations, drawing all reasonable inferences from
the evidence to support the juvenile court’s findings and orders. Issues of fact and
credibility are the province of the juvenile court and [the reviewing court] neither
reweigh[s] the evidence nor exercise[s its] independent judgment. [Citation.] But
substantial evidence ‘is not synonymous with any evidence. [Citations.] A decision
supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] . . .
“The ultimate test is whether it is reasonable for a trier of fact to make the ruling in
question in light of the whole record.” [Citation.]’ [Citation.]” (Ibid.)
b. Father
Our review of the record reveals there is substantial evidence to support the
juvenile court’s jurisdiction findings in S-1 through S-4 of the supplemental petition as to
Father. Father did not participate in therapy, and did not participate in services to address
domestic violence. He did not complete a parent orientation class. He did not attend the
parenting without violence class. Father told the social worker he was attending 12-step
meetings; however, he did not provide the social worker with contact information for his
sponsor.
In addition to his failure to participate in services, Father violated the juvenile
court’s orders by continuing to fight with Mother, including via text message while she
was participating in her substance abuse inpatient treatment program. Father relapsed by
using controlled substances, missed drug tests, and provided diluted drug tests. Finally,
Father did not comply with his case plan requirements because he failed to ensure that
A.M.C. was current with his medical and dental care, and did not ensure that A.M.C.
Cal.App.3d 1448, 1468, fn. 4 [reunification services may not exceed twelve months with
one possible six-month extension].)
14
receive regular therapy. The juvenile court’s finding that the allegations in S-1 through
S-4 were true as to Father is supported by substantial evidence.
c. Mother
We find substantial evidence in the record to support the juvenile court’s true
finding regarding S-6 as to Mother. The Department presented evidence in support of the
added allegation that A.M.C.’s medical and mental health needs were not being met
while in the parents’ care, including status reports and the testimony of the social worker
at the hearing that A.M.C. was not current with his medical and dental care, and was not
consistently participating in therapy. A.M.C.’s therapist reported to the social worker
that A.M.C. was not making progress in therapy while in his parents’ care and that both
Mother and Father had cancelled therapy appointments. Under the case plan, both
Mother and Father were responsible for ensuring that A.M.C. was receiving proper care.
The evidence demonstrates that A.M.C. was not. There is substantial evidence to support
the juvenile court’s true finding regarding S-6 as to Mother.
d. Standard of Review for Disposition
We review a disposition order for substantial evidence. (In re D.B. (2018) 26
Cal.App.5th 320, 328 [appellate court considers entire record in reviewing dispositional
findings for substantial evidence].) But a removal order at a disposition hearing must be
founded upon clear and convincing evidence. (§ 361, subd. (c)(1).) Accordingly, as the
California Supreme Court recently explained, where a trial court’s determination was
founded upon a clear and convincing evidentiary standard, a substantial evidence review
of that decision is a nuanced one. “[A]n appellate court must account for the clear and
convincing standard of proof when addressing a claim that the evidence does not support
a finding made under this standard. When reviewing a finding that a fact has been
proved by clear and convincing evidence, the question before the appellate court is
whether the record as a whole contains substantial evidence from which a reasonable
factfinder could have found it highly probable that the fact was true. In conducting its
15
review, the court must view the record in the light most favorable to the prevailing party
below and give appropriate deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-
1012.)
“A removal order is proper if based on proof of parental inability to provide proper
care for the child and proof of a potential detriment to the child if he or she remains with
the parent.” (In re N.M. (2011) 197 Cal.App.4th 159, 169.) The juvenile court may
consider both present circumstances as well as the parent’s past conduct in determining
whether removal is appropriate. (See id. at p. 170.) “Before the court issues a removal
order, it must find the child’s welfare requires removal because of a substantial danger, or
risk of danger, to the child’s physical health if he or she is returned home, and there are
no reasonable alternatives to protect the child.” (Ibid.) While the court has broad
discretion to determine what is in the child’s best interests and to fashion a dispositional
order, there must be “clear and convincing evidence that removal is the only way to
protect the child.” (Id. at pp. 170-171.)
Based on our review of the record, we find substantial evidence supports the
juvenile court’s decision that placing A.M.C. with his parents posed a substantial risk of
harm to him and that there were no reasonable means to protect A.M.C. from these harms
without removal. The social worker testified at the hearing that A.M.C. was very
vulnerable and needed stability and safety. It was only after A.M.C. was placed in the
care of his grandparents that his mental and physical health needs were being addressed.
The juvenile court cited the parents’ insufficient care in its ruling on disposition, stating
to Father: “[A.M.C.’s] care for his mental health and his physical health was not taken
care of while he was in your care. Both you [Father] and [Mother] canceled therapy
appointments so that he was not having consistent therapy.” The juvenile court
continued: “And it’s only now that he’s been solely in the paternal grandparents[’] care
16
that he’s now finally up-to-date on his medical and dental issues.” The fact that the
parents had not adequately cared for A.M.C. during family maintenance was evidence
that his return at the time could be harmful to his mental and physical health.
When A.M.C. was originally placed with the parents with family maintenance
services, Mother continued to use methamphetamine and had only recently achieved
sobriety after completing a residential treatment program for substance abuse. When she
testified at the hearing, Mother had been out of residential treatment for five days, and the
social worker believed that Mother needed more stable time as a sober person before she
could effectively care for and protect A.M.C. Similarly, Father had relapsed and used
drugs during the proceedings and did not consistently comply with his drug testing
requirement.
Father downplayed the risk of domestic violence to A.M.C.’s safety and denied
that A.M.C. was suffering at all because he had never seen Father and Mother engage in a
physical altercation. Father’s lack of insight into A.M.C.’s needs and inability to
properly care for him created a substantial risk of harm to A.M.C. if he were returned to
Father’s care.
While the record shows that the parents clearly loved A.M.C. and were bonded to
him, they were not ready at the time of the hearing to have A.M.C. safely returned to
their care. Mother was very early in her sobriety, and Father needed to further address
his substance abuse issues. Moreover, both parents needed to participate in domestic
violence services so they could better protect A.M.C. from harm in the future. The
court’s order removing A.M.C. from the parents is supported by substantial evidence.
III. DISPOSITION
The September 10, 2019 jurisdiction and disposition order of the juvenile court is
affirmed.
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