In re Emelina H. CA2/7 ( 2021 )

Filed 10/27/21 In re Emelina H. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re EMELINA H., A Person B309019
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 19CCJP08202)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
LEAH A.,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles
County, Debra R. Archuleta, Judge. Reversed.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Leah A. (Mother) appeals from the juvenile court’s
disposition order declaring eight-year-old Emelina H. a
dependent of the court and terminating jurisdiction with a child
custody order granting Mother and Fidel H. (Father) joint legal
and physical custody, with Father having primary physical
custody of Emelina in Texas. Mother contends the disposition
order constituted a de facto removal of Emelina from Mother that
was unsupported by findings mandated under Welfare and
Institutions Code, section 361, subdivision (c).1
We conclude the juvenile court abused its discretion in
terminating jurisdiction at the disposition hearing without
making findings that services and supervision were no longer
necessary, finding instead that Mother appeared to have a
continuing problem with alcohol abuse and it was not in
Emelina’s best interest to live with Mother. We remand for the
court to conduct a new disposition hearing based on current
circumstances.
1 Further statutory references are to the Welfare and
Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral and Investigation
In November 2019 Mother and Emelina were living in the
home of maternal grandmother Elaine C. in Monterey Park.
Mother and Father separated when Emelina was three years old,
and Father resided in Texas, where he worked in construction.
Father visited Emelina three to four times per year, for about two
weeks each visit.
On November 6, 2019 the Los Angeles County Department
of Children and Family Services (Department) received a referral
alleging the prior night Mother came home from a night of
drinking and got into an argument with Elaine. Mother threw
several household items at Elaine, including a flower pot that
caused a one-inch “knot” on Elaine’s head. Emelina was present
nearby but did not sustain any injuries.
A social worker made an unannounced visit to Elaine’s
home the day of the referral. Elaine told the social worker the
altercation occurred when Mother came home intoxicated and
tried to take Emelina out of the home. Mother yelled at Elaine,
became aggressive, and started throwing things, including a vase
that hit Elaine in the head and knocked over a lamp. Emelina
was sitting next to Elaine on the couch while Mother was
throwing things. Elaine stated Mother did not have a history of
getting drunk and had never been aggressive before. Mother was
very loving and attentive toward Emelina. Elaine admitted she
had been an alcoholic herself, but now she drank only
occasionally.
Mother admitted to the social worker that she had thrown
items at Elaine during the November 5 argument, but she did not
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know Elaine had been injured. Mother said she did not drink
often and only had one mixed drink the night of the argument.
Mother said she had a very good relationship with Emelina, they
would talk about everything, and they did not have difficult
times. Mother agreed to take a drug test, but she declined to
submit to a drug test on November 7 and 8, claiming she could
not take the tests because of work.
The social worker interviewed Emelina separately.
Emelina said Mother “acts crazy when she gets drunk,” which
occurred with “‘a little’” frequency. Elaine also drank on occasion
and “goes a little ‘too off with beers.’” In the November 5
incident, Mother was throwing things, and Elaine suffered a “‘big
giant bump on her head.’” But Emelina was not hurt. Mother hit
Elaine on other occasions, but there was no blood or any injuries.
Emelina had seen Mother smoke something like a “‘brown circle’”
(described as being “like a circle but fatter”) when Mother was
bored. Emelina felt safe with Mother and Elaine. Emelina’s
teacher stated Emelina was a below-average student, but
Emelina did not have behavioral problems.
On December 18 the social worker interviewed Father, who
had been visiting since before Thanksgiving. Father suspected
Mother had a potential alcohol problem based on what he had
heard about a 2018 referral,2 but during his prior visits he did not
2 On November 25, 2018 the Department received a referral
alleging mother had been drinking alcohol and fell on two steps,
and while accompanied by Emelina to the hospital, Mother was
belligerent toward police, paramedics, and hospital staff.
However, after further investigation the Department deemed the
referral inconclusive.
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observe Mother drinking too much or exhibiting any troubling
behaviors. When asked whether Mother had a history of
aggressive behavior, Father responded she only became
aggressive when she drank. He could not recall when Mother
was last aggressive, and he denied Emelina was present. Father
felt Emelina was not in any danger living in the home. Father
drank beer occasionally and would smoke marijuana once or
twice a week on vacation, but not at other times. Father had no
other children and was willing to care for Emelina.
The social worker interviewed Emelina again, who noted
Father was currently staying in Elaine’s home with the family.
Emelina liked having Father there because he was always nice to
her and helped her with her homework. Emelina previously
visited Father in Texas and got to see her cousins. Mother and
Father got along, and Father “‘never lets mom drink.’” Emelina
did not like when Mother drank because when she did, the family
would have a lot of arguments in the home. Emelina would get
scared, although nothing would happen to her.
On December 18, 2019 Mother and Father tested positive
for marijuana. Mother acknowledged she had smoked marijuana
a few days before the test. The social worker also reported that
in July 2019 Mother was cited for driving under the influence
after refusing a sobriety test.
B. The Petition
On December 24, 2019 the Department filed a petition on
behalf of Emelina under section 300, subdivisions (a) and (b).
The petition alleged Mother had a history of violent altercations
with Elaine in the presence of Emelina, placing Emelina at risk
of serious harm, and Mother was a current abuser of alcohol and
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marijuana. The petition also alleged Mother created a
detrimental home environment by allowing Elaine, a current
abuser of alcohol, unlimited access to Emelina; Father knew of
the endangering home environment and failed to protect
Emelina; Father had a history of substance abuse and was a
current abuser of marijuana; and Mother failed to protect
Emelina from Father’s substance abuse.
At the December 26 detention hearing, the juvenile court
ordered Emelina released to the home of parents, with Emelina
to live with Mother. The court ordered Mother to submit to
weekly random and/or on-demand alcohol and drug testing and
for Mother to attend a substance abuse program and counseling.
C. The Jurisdiction and Disposition Report
The February 18, 2020 jurisdiction and disposition report
stated Mother and Emelina had moved out of Elaine’s home in
January due to ongoing disagreements, and they were living with
a friend in a studio apartment in Monterey Park. Mother told
the dependency investigator she and Father did not have a family
court order governing custody of Emelina, but in practice Mother
was Emelina’s primary caregiver and Father paid child support.
Mother’s relationship with Father was civil; she had no
complaints about his parenting; and he was free to see Emelina
any time he wished. Father was staying with paternal
grandmother Celestina in Colton, and he would sometimes care
for Emelina if Mother had to work late. In a February 13
interview with the dependency investigator, Mother denied being
intoxicated and having an altercation with Elaine on the night of
the referral incident. Mother further denied she was ever drunk
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and that Elaine drank to excess. Mother admitted to using
marijuana, but never in Emelina’s presence.
Father told the dependency investigator he lived with the
paternal great-uncle, great-aunt, and first cousins in Texas and
stayed with Celestina when he visited California.3 Father
reported he previously believed Emelina was safe with Mother
and Elaine, but recently Mother had been ignoring his calls and
making it hard for him to speak with Emelina. Father was upset
to learn Emelina was doing poorly in school; he believed Mother
did not spend sufficient time helping Emelina with her
homework; and Mother was not interested in participating in a
parent-teacher conference. Father attended the parent-teacher
conference without Mother. Father admitted he had used
marijuana in the past but stated he never used it around
Emelina and now had stopped completely.
The Department recommended the petition be sustained as
to Mother and Emelina be placed in the home of parents with
family maintenance services. The Department concluded
Emelina’s needs were being met and Father was now actively
involved in her care, although Mother had already missed a
family preservation services meeting due to a work conflict.
Since the detention hearing, Mother tested positive for marijuana
3 The March 10, 2020 last minute information for the court
stated the dependency investigator spoke with the paternal
great-aunt in Montgomery, Texas. She reported the family
owned a five-bedroom house on five acres with horses, livestock,
and pets, and Emelina was welcome to live there with Father. If
Emelina were to move to Texas, she would attend Magnolia
Elementary School, and a school bus would pick her up near the
house.
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at low levels two times, tested negative two times, and missed
one test. Father’s marijuana use did not appear to have impacted
Emelina’s care, and the Department recommended Father be
declared nonoffending.
D. The Jurisdiction Hearing
At the March 10, 2020 jurisdiction hearing,4 Mother
pleaded no contest to the allegations of the petition under
section 300, subdivision (b), concerning Mother’s altercation with
Elaine and Mother’s alcohol abuse, and the juvenile court
sustained the allegations.5 The court dismissed the remaining
counts and amended the sustained count alleging Mother’s
substance abuse to remove the allegation Father failed to protect
Emelina. Emelina was ordered released to the home of parents
subject to existing orders and a stipulated parenting plan under
which Emelina would live primarily with Mother through the end
of the school year, with Father having visitation during the
summer and holidays. The court set a disposition hearing for
April 14, 2020, but the hearing was continued multiple times due
to the COVID-19 pandemic and was later set for November 16,
2020.
4 Judge Kim Nguyen presided over the jurisdiction hearing;
Judge Debra R. Archuleta presided over the subsequent
disposition hearing.
5 The petition was amended to remove the allegations that
Mother threw a flower pot at Elaine and that Mother and Elaine
had pushed each other on previous occasions.
8
E. The Status Review Report and Last Minute Information for
the Court
The June 30, 2020 status review report stated Emelina was
spending most of her time with Father, who had remained in
California, although Emelina also stayed with Mother at the
apartment of Mother’s friend. Father reported Emelina’s
education was his priority, and he assisted Emelina with her
school work during the pandemic school closure. Father stated,
“‘Emelina is getting used to my parenting [techniques]
now . . . she thought I was too strict, but I have more structure
than her mom. I give her a schedule, and she loves being with
her cousins.’” Father expressed concern that if Emelina did not
return to the classroom in the new school year, Mother would not
follow through with proper home-schooling, and Father was
unsure if Mother had an Internet connection at home. Father
stated the paternal great-uncle in Texas had agreed Father could
stay in California for the time being because the family
construction business had slowed during the pandemic.
The report concluded Emelina was doing well and enjoying
her summer break with relatives on both sides of her family.
Mother had enrolled in a substance abuse outpatient program at
Clinica Romero on February 18, 2020 and had submitted to seven
random drug tests, all of which were negative. However, Mother
had missed three tests for drugs and alcohol with Pacific
Toxicology since March 10, 2020. She tested negative on 10 other
occasions.
The November 5, 2020 last minute information for the
court reported Mother had recently moved into a rented two-
bedroom house in El Monte and found a steady job in the
housekeeping industry. Emelina continued to spend days to
9
weeks at a time in Father’s care at Celestina’s home, and Father
assisted Emelina with schoolwork at Mother’s home while
Mother was working. The paternal great-uncle’s construction
business was beginning to pick up, and Father expected to return
to Texas. He wanted Emelina to live with him in Texas during
the school year. Paternal great-aunt was willing to assist with
Emelina’s care and schooling if Emelina moved to Texas with
Father.
Between December 16, 2019 and October 29, 2020 Mother
submitted to 22 tests with Pacific Toxicology that were negative
for alcohol and drugs. However, six of Mother’s tests were
positive for marijuana (five of which occurred early in the testing
period and showed low levels of marijuana), and Mother missed
19 tests. On July 16, 2020 Mother had a positive test for alcohol
in the middle of the day, which, according to the social worker,
suggested Mother was continuing to use alcohol. The report
noted that in August 2020, Mother missed three of four tests; in
September, she missed two of four tests; and in October, she
missed all of her tests.
The case manager at Clinica Romero stated Mother had
also been randomly tested 26 times by Clinica Romero and tested
negative for drug use; however, none of Clinica Romero’s tests
measured the presence of alcohol. Mother showed progress in her
family preservation program, and she showed improved
confidence and attitude with her new job and home, and Father’s
assistance in caring for Emelina.
The Department found Emelina was stable, and although
the COVID-19 pandemic had caused disruption in her schooling,
Father’s involvement had helped Emelina improve her reading
skills and grade-level expectations. Further, Emelina’s basic
10
needs were being met, there was no family conflict, and the
parents engaged in positive coparenting. Although Mother was
encouraged to continue working with Clinica Romero through her
February 2021 completion date, the social worker concluded “[i]t
does not appear that further supervision by [the Department] is
necessary.” The Department recommended the juvenile court
“terminate jurisdiction with a Family Law Order granting shared
legal and physical custody of Emelina [] to both parents . . . . It is
further recommended when father Fidel moves back to Texas,
that his residence be deemed the child’s primary residence when
school is in session, and that mother Leah shall have Emelina
with her during Christmas break, spring break and summer
break.”
F. The Disposition Hearing
At the disposition hearing held on November 16 and 17,
2020, the Department reiterated its recommendation that the
court terminate jurisdiction because Emelina did not face an
immediate risk of harm in either parent’s care, with joint custody
to Mother and Father and Father having primary physical
custody of Emelina in Texas. Father’s counsel joined the
Department’s recommendation and added that Father believed
the school in his Texas neighborhood was superior to Emelina’s
current school.
Emelina’s counsel joined the recommendation that the
court terminate jurisdiction and order joint custody, but she
stated Emelina preferred to live with Mother during the school
year and spend breaks with Father. Mother’s counsel agreed,
arguing it would be in Emelina’s best interest to remain in
11
California where she had lived her entire life and to finish the
school year where she was enrolled.
The juvenile court expressed a concern that mother’s drug
tests at Clinica Romero did not include testing for alcohol, given
that Mother primarily struggled with alcohol abuse. The
Department responded that Mother was undergoing testing for
alcohol use at Pacific Toxicology, and none of Mother’s service
providers reported an odor of any substances on Mother or
observed her to be under the influence. The court responded, “I
don’t know why you’re telling the court [Mother] appears to be in
compliance and there are no concerns, because I’m reading the
report right here.” The court continued, “I am reviewing the [last
minute information for the court], looking at three of four tests
missed in August, two of four in September and all of October
was missed.” The court asked Mother’s counsel why Mother had
missed all of her testing obligations in October when she knew
there was an upcoming hearing that would address custody.
Mother’s counsel responded that Mother had been testing
through her program at Clinica Romero and “I don’t know if she
was aware they were [not] testing for alcohol.” Further, Mother
recently moved to a new house, obtained an new job, and “she’s
obviously caring for her daughter.” Mother’s counsel added that
Mother was present by videoconference and would be happy to
answer any questions from the court. The court did not ask
Mother any questions.
The juvenile court found by clear and convincing evidence
that Emelina had to be removed from Mother because there was
a substantial risk of danger in the home of Mother as the primary
caregiver, and there were no reasonable means by which Emelina
could be protected without removal. The court expressed concern
12
that Mother had a positive alcohol test in the middle of the day in
July of 2020, and “[t]here ha[ve] been too many no shows, too
many failed tests, and no alcohol testing which had previously
been ordered as part of this management and the case plan. . . .”
The court indicated it intended to grant Mother and Father joint
legal custody of Emelina with Father having primary physical
custody and Mother having visitation during summer and
holiday breaks. The court stated it would terminate jurisdiction
upon receipt of a juvenile custody order. The court then
continued the matter to the following day.
At the outset of the hearing on November 17, the juvenile
court stated it had discussed with counsel “the fact that this court
erroneously made removal orders from the Mother and giving
home-of-parent custody to father,” and the court vacated its
orders from the previous day. The court found, “The court does
not find by clear and convincing evidence that the child Emelina
[] must be removed from the custody of Mother and awarded to
Father,” and instead “order[s] that she live, as indicated in the
terms and conditions of the juvenile custody order that’s going to
be prepared in this matter. . . . Mother and Father to have joint
legal custody with primary physical custody to Father[,] and
Mother will receive the child for summer breaks and the
holidays.” The court explained, “The reason for the court
awarding the visitation and the custody the way it did was the
court was really very discouraged with the most recent testing
that has not taken place with Mother. There was inappropriate
testing, as far as this court was concerned. There seemed to be
maybe even evidence of evading. . . . And with all of the
numerous recent missed tests, this court found it was in the best
interest of the child to award the primary physical custody to the
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Father.” The court ordered that jurisdiction terminate upon
receipt of the juvenile custody order.
Mother timely appealed the juvenile court’s November 16
and 17 orders.6
DISCUSSION
Mother contends the juvenile court erred in terminating
jurisdiction at the disposition hearing and issuing a custody order
granting primary physical custody of Emelina to Father because
the court failed to make the required findings under section 361,
subdivision (c), to support removal of Emelina from her custodial
parent. We agree the juvenile court abused its discretion in
terminating jurisdiction, but for a related reason—the court
failed to make the required findings that court supervision and
services were no longer necessary, finding to the contrary that
Mother appeared to have a continuing alcohol abuse problem as
evidenced by her positive drug test and multiple missed tests.7
6 The order terminating jurisdiction was entered on
November 19, 2020, at which time the juvenile court entered a
juvenile custody order. We take judicial notice of the November
19, 2020 order. (Evid. Code, §§ 452, subd. (c), 459, subd. (a).) We
treat the notice of appeal as filed immediately after entry of the
November 19 order. (Cal. Rules of Court, rule 8.104(d)(1); see
Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 607.)
7 Had the juvenile court made the necessary findings under
section 361, subdivision (c), to remove Emelina from Mother—
which the court expressly did not do—it could then have placed
Emelina in Father’s primary custody and terminated jurisdiction.
(See § 362.1, subd. (b)(1) [where the court removes a child from
one parent and places the child with the other parent, the court
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“If the juvenile court finds a basis to assume jurisdiction,
the court is then required to hear evidence on the question of the
proper disposition for the child.” (In re Destiny D. (2017)
15 Cal.App.5th 197, 205 (Destiny D.); accord, Cynthia D. v.
Superior Court (1993) 5 Cal.4th 242, 248; see § 358, subd. (a)
[“After finding that a child is a person described in Section 300,
the court shall hear evidence on the question of the proper
disposition to be made of the child.”].) “Typically, once the child
has been adjudged to be a dependent child . . ., the juvenile court
determines what services the child and family need to be
reunited and free from court supervision.” (Destiny D., at p. 205;
accord, In re Anthony Q. (2016) 5 Cal.App.5th 336, 345-346; see
In re Carl H. (2017) 7 Cal.App.5th 1019, 1037 [“[A]t the
dispositional hearing, the court must decide where the child will
live while under its supervision, with the paramount concern
being the child’s best interest.”].) “The court then sets a review
hearing, which must be held within six months, to evaluate the
family’s circumstances and decide whether continued dependency
jurisdiction is necessary. (§§ 366.21, subd. (e) [review hearing if
child removed from physical custody of his or her parent], 364
[review hearing if child remains in the custody of one or both
parents].)” (Destiny D., at p. 206.)
“[T]he juvenile court retains the discretion in an
appropriate case to terminate its jurisdiction at the close of a
disposition hearing when it finds services and continued court
may “order that the [other] parent become legal and physical
custodian of the child. The court may also provide reasonable
visitation by the noncustodial parent. The court shall then
terminate its jurisdiction over the child.”].)
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supervision are not necessary to protect the child.” (Destiny D.,
supra, 15 Cal.App.5th at p. 208.) However, as we explained in
Destiny D., “it will be an unusual case when protections imposed
at disposition will be sufficient to permit the conclusion that
termination is appropriate.” (Id. at p. 211.) We review a juvenile
court’s order terminating jurisdiction at the disposition hearing
for an abuse of discretion. (Ibid.; accord, In re D.B. (2020)
48 Cal.App.5th 613, 625.)
As discussed, the juvenile court expressed its concern at the
disposition hearing about Mother’s positive test for alcohol in the
middle of the day on July 16, 2020, and that “there was
inappropriate testing” and “even evidence of evading.” As the
court observed, Mother missed three of four tests in August, two
of four tests in September, and four of four tests in October. The
court considered Mother’s positive test and “numerous recent
missed tests” in concluding “it was in the best interest of the child
to award the primary physical custody to the Father.” But that
was not the correct standard for terminating jurisdiction. If
anything, the court’s findings showed Mother and Emelina would
benefit from further court supervision and services to ensure that
any drinking problem Mother continued to have (after attending
a substance abuse program for seven months) was addressed so
Emelina could be safe in Mother’s care.
Given evidence of what appeared to be Mother’s continuing
alcohol problem, the dependency statute envisioned Mother
receiving additional services at the disposition hearing, then the
court holding a section 364 review hearing at which the
Department would have the burden of establishing “by a
preponderance of evidence that the conditions still exist which
would justify initial assumption of jurisdiction under Section 300,
16
or that those conditions are likely to exist if supervision is
withdrawn.” (§ 364, subd. (c).) And notably, at the review
hearing, a “[f]ailure of the parent . . . to participate regularly in
any court ordered treatment program shall constitute prima facie
evidence that the conditions which justified initial assumption of
jurisdiction still exist and that continued supervision is
necessary.” (Ibid.) The juvenile court bypassed this procedure
designed to protect the child.
The Department relies on our opinion in Destiny D., supra,
15 Cal.App.5th 197 to support the juvenile court’s termination of
jurisdiction in this case. The facts of Destiny D. are
distinguishable. There, the mother of 15-year-old Destiny
obtained a domestic violence restraining order and a temporary
child custody order requiring the father to move out of the family
home and giving mother sole physical custody of Destiny. (Id. at
p. 201.) The juvenile court subsequently assumed jurisdiction
over Destiny and sustained allegations the father abused alcohol
and drove while intoxicated with Destiny in the vehicle, and the
mother failed to protect Destiny from father’s domestic violence
and alcohol abuse. (Id. at p. 204.) The court terminated
jurisdiction at the disposition hearing and entered a juvenile
custody order awarding primary physical custody of Destiny to
the mother with monitored visitation for the father. (Id. at
pp. 204-205.) We rejected the father’s contention the juvenile
court did not have authority to terminate jurisdiction at the
disposition hearing with entry of a custody order, explaining, “If
no substantial risk of harm exists once those restrictions are in
place, and ongoing supervision is unnecessary, termination of
jurisdiction is appropriate.” (Id. at p. 208.) We concluded that
because the parents were in compliance with the domestic
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violence restraining order, and the father was limited to
monitored visitation, any risk to Destiny was eliminated. (Id. at
p. 212; see In re D.B., supra, 48 Cal.App.5th at p. 625 [disposition
order terminating jurisdiction and awarding legal and physical of
daughter to her nonoffending mother, with monitored visitation
and psychological counseling for emotionally abusive father, was
not an abuse of discretion where “[n]o evidence suggested
[m]other or [f]ather would stop complying with the court’s orders
if the court closed the case[,]” and “all the evidence was
[d]aughter would be safe without the court watching her.”].)
Here, in contrast to Destiny D. and In re D.B., the custody order
limiting Mother to visitation during summer and holiday breaks
would not ensure the safety of Emelina because Mother
maintained joint physical custody with unrestricted visitation
during Emelina’s breaks. The same findings that caused the
juvenile court to place Emelina with Father (Mother’s daytime
positive test and multiple missed tests) show the conditions that
led to the filing of the petition (Mother’s excessive drinking) may
still exist, and Mother may need more services. While it may
well be that Mother can address the court’s concerns by testing
negative and not missing any tests before a future review
hearing, terminating jurisdiction without finding that additional
services and court supervision were no longer necessary was an
abuse of discretion.
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DISPOSITION
The juvenile court’s disposition order terminating
jurisdiction and entering a juvenile custody order is reversed, and
the matter is remanded for the court to conduct a new disposition
hearing based on current circumstances.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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