In re Joshua H. CA2/3 ( 2015 )

Filed 9/22/15 In re Joshua H. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
In re JOSHUA H., a Person Coming Under B260190
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK07115)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
YOLANDA R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Margaret S.
Henry, Judge. Affirmed.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
_____________________
INTRODUCTION
Appellant Yolanda R. (mother) appeals from the juvenile court’s order removing
her then 16-year-old son, Joshua H., from mother’s physical custody pursuant to Welfare
and Institutions Code1 section 361. Mother challenges the sufficiency of the evidence.
We conclude the record supports the court’s finding that mother threatened Joshua with a
knife while expelling him from the home, and this was sufficient to warrant the removal
order in view of the substantial danger such extreme conduct posed to Joshua’s physical
and mental well-being. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On August 26, 2014, the Los Angeles Department of Children and Family
Services (DCFS) received a referral alleging mother had physically and emotionally
abused Joshua two days earlier. The reporting party stated that mother chased Joshua out
of the house with a knife after arguing with him over some food. This was allegedly the
third or fourth time mother had locked Joshua out of the house after an argument. Joshua
reportedly spent the night at his maternal aunt’s home.
A Department social worker interviewed Joshua about the incident. Joshua
reported that the incident began in the kitchen where mother had some take-out food
sitting on the counter. Mother reportedly ordered Joshua not to touch “ ‘her’ food,” but
Joshua nevertheless inspected the food and asked mother, in a “joking” manner, “what’s
this?” Mother became angry at that moment and ordered Joshua to give her his cell
phone. Joshua “shrugged off” the demand, which reportedly “infuriated” mother.
Mother then commanded Joshua to turn over his cell phone and keys and leave the home.
Mother grabbed for the keys from Joshua’s pocket, but Joshua blocked her with his hand
and made his way to the backdoor to exit the house. As he was stepping out the door,
mother reportedly grabbed a one-foot long kitchen knife, held it in front of her and yelled
at him, “ ‘don’t you even think of bringing your butt back in here!’ ” Joshua called his
maternal aunt to pick him up and stayed at her house that night.
1
All further statutory references are to the Welfare and Institutions Code.
2
Joshua reported this was the fourth time in the last two to three years that mother
ordered him to leave the home. This incident was the first time he had spent the entire
night away from the home. He reported that when he returned the next day, he and
mother had minimal conversation about the incident and never discussed it again.
According to the social worker, Joshua seemed “unfazed” by the incident; he said he was
“ ‘used to it’ ” because mother regularly “grab[s] these objects as scare tactics.” Joshua
denied that mother had any mental health issues; he reported that she took medication for
her high blood pressure and said she consumed marijuana in her room to cope with
“ ‘stress.’ ” Joshua said he had no current relationship with his father, who had been out
of Joshua’s life for the past two to three years, and he had no interest in living with his
father.
The social worker interviewed mother. Mother acknowledged that she had a
verbal altercation with Joshua, but denied threatening him with a knife. She admitted
commanding Joshua to relinquish his cell phone and keys and leave the house, but said
this was intended to allow him to “cool off,” as he had been acting disrespectfully. With
respect to the knife, mother claimed that Joshua knocked over some kitchen utensils
when he stormed out the backdoor, and she had picked up a “ ‘spoon or spatula’ ” as he
left the house. Mother acknowledged she had difficulty as a single parent managing
Joshua’s behavior, and Joshua’s disobedience was especially challenging because he is
“so ‘big and strong.’ ” Mother said she took Prozac to manage a hormone imbalance
associated with premenstrual dysphoric disorder, and she used medical marijuana,
pursuant to a license, to cope with sciatic nerve pain.
On August 29, 2014, the juvenile court held the initial detention hearing. The
court found the Department presented a prima facie case for detaining Joshua and ordered
Joshua detained in the maternal aunt’s custody pending further disposition.
On October 3, 2014, the Department filed a supplemental report concerning its
efforts to formulate a voluntary reunification plan with mother. The report indicated that
Joshua was apprehensive about returning to mother’s custody. Joshua reported that
mother had not attended counseling during the term of his detention. According to
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Joshua, mother continued to maintain that the incident was his fault, she refused to admit
that she had a knife and disavowed any willingness to change. Mother admitted she was
not enrolled in counseling, but she was taking parenting classes. The Department
confirmed mother was enrolled in the reported parenting program.
The Department concluded that a voluntary family reunification plan would not be
appropriate due to the continued acrimony between mother and Joshua over who was to
blame for the incident. The Department maintained that regardless of whether mother
threatened Joshua with a knife or a “handful of utensils” as she claimed, her conduct
reflected deep anger management issues that would pose a significant danger to Joshua
were he returned to mother’s physical custody. The Department asserted this danger
could not be ameliorated without mother undergoing individual counseling. Accordingly,
the Department reaffirmed its recommendation to remove Joshua from mother’s custody,
with ordered anger management classes and individual counseling for mother.
On October 3, 2014, the juvenile court held the combined jurisdiction and
disposition hearing. The Department submitted on its detention, jurisdiction and
disposition, and supplemental reports filed with the court. Mother presented no evidence.
Her counsel argued the court should dismiss the dependency petition because mother now
“acknowledge[d] that she made a mistake,” she had enrolled in parenting and individual
counseling, and she was “willing to make an appropriate plan” for a “cool-off period”
during which Joshua could stay with the maternal aunt. Mother’s counsel added that
Joshua is “a very strong, tall man” and, as such, mother’s conduct posed “no kind of risk
to him.”
Joshua’s counsel argued the petition should be sustained on the allegation that
mother endangered Joshua by excluding him from the home and threatening him, as “the
Department [had] met its burden” of proof as to that allegation. Joshua’s counsel
disagreed with mother’s suggestion that a plan short of declaring Joshua a dependent
could be worked out, observing that mother continued to blame Joshua for her own anger
management issues.
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The court sustained the jurisdictional allegation under section 300, subdivision (b),
finding that mother “excluded [Joshua] from [his] home and threatened [him] with a
knife,” thereby endangering his physical health and safety. Based on the evidence, the
court found that mother had “a lot of anger,” which caused her to pick up a knife and
threaten her child. As for disposition, the court found that mother’s “temper” and
conduct posed a substantial danger to Joshua’s physical and emotional well-being, and
that no reasonable means existed to protect Joshua without removing him from mother’s
physical custody.
DISCUSSION
Before a dependent child may be taken from the physical custody of a parent,
section 361, subdivision (c)(1) requires the juvenile court to find “clear and convincing
evidence” of “a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be protected without
removing the minor from the [parent’s] physical custody.”
Notwithstanding section 361’s heightened proof requirement, “on appeal, the
substantial evidence test applies to determine the existence of the clear and convincing
standard of proof, the same as in other cases.” (In re Amos L. (1981) 124 Cal. App. 3d
1031, 1038.) “The ‘clear and convincing’ standard . . . is for the edification and guidance
of the trial court and not a standard for appellate review. . . . [O]n appeal from a
judgment required to be based upon clear and convincing evidence, ‘the clear and
convincing test disappears . . . [and] the usual rule of conflicting evidence is applied,
giving full effect to the respondent’s evidence, however slight, and disregarding the
appellant’s evidence, however strong.’ ” (Sheila S. v. Superior Court (2000)
84 Cal. App. 4th 872, 880-881.)
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Mother raises two challenges to the order removing Joshua from her physical
custody. First, mother contends the court failed to adequately consider Joshua’s age
when the court determined returning Joshua to her physical custody would pose a
substantial danger to the minor’s well-being. Second, mother argues the court failed to
consider other reasonable measures for protecting Joshua short of removal. Neither
contention overcomes the substantial evidence in the record that supports the court’s
order.
With respect to mother’s first contention, the evidence showed, and the trial court
found, that mother threatened Joshua with a knife, she refused to take responsibility for
her conduct, and this marked an escalation in an ongoing pattern of threatening Joshua
and expelling him from the home. Regardless of Joshua’s age or physical size, the
evidence of mother’s resort to a deadly weapon in a moment of anger plainly supported
the juvenile court’s conclusion that returning Joshua to mother’s home would pose a
substantial danger to his physical and mental well-being.
As for mother’s second challenge, the same evidence supported the court’s
determination that removal was necessary, and mother failed to offer any alternatives to
out of home placement that would adequately protect Joshua should mother be overcome
with anger in the future. The evidence showed that mother failed to acknowledge the
danger her conduct posed to her son and that she had failed to participate in programs to
address her apparent anger control issues. The court also voiced its concerns about the
mix of pharmaceuticals and marijuana mother took for her medical conditions, and the
impact these drug combinations might be having on her behavior. All told, this evidence
reasonably supported the court’s conclusion that, until mother participated in therapy to
address these issues, removing Joshua from her physical custody was necessary to ensure
his safety.
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DISPOSITION
The disposition order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
EDMON, P. J.
ALDRICH, J.
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