In re J.G. CA2/4 ( 2021 )

Filed 11/17/21 In re J.G. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re J. G. et al., Persons B309842
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. Nos.
19CCJP06470,
19CCJP06470A-E)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
E.M., et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Jana M. Seng, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant E. M.
Christopher R. Booth, under appointment by the Court of
Appeal for Defendant and Appellant C.G.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant Deputy County Counsel, Navid Nakhjavani, Deputy
County Counsel for Plaintiff and Respondent.
INTRODUCTION
E.M. (mother) and C.G. (father) appeal the juvenile court’s
disposition order removing the couple’s four children from
mother’s care. The family came to the attention of the Los
Angeles County Department of Children and Family Services
(DCFS) after the children’s minor cousin reported that father
sent her sexually explicit text messages. The children were
detained from father and placed with mother. For the next
several months, mother told DCFS that she did not know where
father was. As it turned out, however, mother, father, and the
children were living together. Mother did not restrict father’s
access to the children, and she coached the children to lie to the
social workers about being with father. The children were then
detained from mother as well.
By the time of the jurisdiction and disposition hearing
nearly a year after the case began, mother had become more
compliant with DCFS, and she had completed most of her court-
ordered programs. The court exercised jurisdiction over the
children under Welfare and Institutions Code, section 300,
subdivisions (b)(1) and (d),1 based in part on a finding that
1All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
mother failed to protect the children. The court ordered the
children to remain detained from mother while family
reunification services continued. Mother and father both appeal
the disposition order, asserting that the children should have
been released into mother’s care. We find the order was
supported by substantial evidence, and affirm.
BACKGROUND
A. Detention from father
In September 2019, mother and father lived in maternal
grandmother’s home along with their four children, four-year-old
J; three-year-old S.; two-year-old M.; and one-month-old C., as
well as mother’s 10-year-old daughter, A. A.’s father, C.M., lived
in another location and maintained weekend visitation with A.
Disposition as to A. is not at issue in this appeal.
On September 3, 2019, DCFS received a report to the child
abuse protection hotline. The reporter stated that father “was
sexually advancing toward a child,” the children’s cousin, Sh.,
who also lived in the maternal grandmother’s home. The
reporter stated that the text messages from father to Sh.
referenced her “booty shorts”; asked if she was a virgin or a
“freak”; asked, “do you want to fuck?”; and included a photograph
of his penis. The reporter said that in the past, father had
engaged in similar actions with a maternal aunt; maternal uncle
had warned mother “of [father’s] sexual tendencies,” but mother
ignored the warnings. The reporter expressed a concern that A.,
who was not related to father, could be a target for grooming.
Children’s social workers (CSWs) visited maternal
grandmother’s home on September 5, 2019 to investigate the
allegation. Mother, father, and the children were no longer living
in the home. A CSW returned to the home on September 9 and
3
spoke with maternal grandmother. Maternal grandmother said
the family had stayed with her for about two weeks after mother
had given birth to C. and the family had no place else to stay.
Maternal grandmother said once she became aware of “the
incident,” she told mother and father to leave her home.
Maternal grandmother said she and father do not have a good
relationship because of “past family issues.”
On September 9, 2019, a CSW went to A.’s school to
interview her. A. was in 5th grade; she appeared clean and well-
groomed. A said she was aware father and 15-year-old Sh. were
sending inappropriate text messages to each other; A. overheard
mother saying that the text messages were bad or dirty. A. said
maternal grandmother told the family they had to leave the
home. A. reported that she never felt uncomfortable with father,
and he had never said anything inappropriate to her. A. reported
no other concerns regarding either father or mother.
When the CSW asked A. when she had last seen father, A.
said she had not seen him since they left maternal grandmother’s
home. But when the CSW asked A. if she was being truthful, A.
admitted she was not; mother told her that if anyone asked, she
should say that she had not seen father. In fact, father was
staying with the family at a motel, and she had seen him the
previous night.
The CSW spoke with mother at the motel where the family
was staying. Mother said she understood the allegations that
had been made, but “she was confused. Mother said when she
spoke to the police, they informed her the text messages were ‘not
that bad.’” Mother said father used her phone to send the text
messages, but he had deleted them. When mother asked father
why he sent the texts, he said he did not know or remember why.
4
Mother said she did not know what to believe. Mother and the
children stayed for four days in a motel; after that, she felt bad
that father did not have a place to stay, so she let him come and
stay with her and the children. Mother did not have any
concerns about father being around the children. When asked
about father’s inappropriate texts to the maternal aunt, mother
said the aunt and father were both adults at the time, the text
messages were consensual, and mother and father “had a
discussion about it and decided to work things out.” Mother
agreed not to allow father to return to the motel for the time
being.
The CSW observed that the four younger children were
clean and appropriately dressed. Four-year-old J. told the CSW
that the family had been staying in motels, and he sees father at
night. J. said he felt safe with father.
Father went to a DCFS office to speak with the CSW on
September 16, 2019. Father said the allegations were false. He
noted that mother’s phone was used to send the text messages,
and said other people had access to the phone. He denied
sending pictures of his genitals to Sh. Father said he did not
know why someone would accuse him of sending the texts. When
asked about the text messages to maternal aunt, father said the
family had set him up. Father said he and maternal aunt were
texting; maternal aunt then asked him for money and when he
declined, “he was exposed” to mother.
Father said that after maternal grandmother asked the
family to leave her home, mother and father decided that father
would “go his separate way.” Father said he had not seen the
children since the previous week; he denied he was staying with
mother and the children.
5
The CSW spoke with A.’s father, C.M., on September 15,
2019. C.M. said that based on his informal custody arrangement
with mother, he picks up A. on Fridays and returns her to mother
on Sunday afternoons. C.M. said he did not have any concerns
about A. being in the care of mother or father. He noted that
mother’s family did not like father, and suggested father may
have been set up.
On October 1, 2019, the juvenile court issued a removal
order to detain the children from father and place them with
mother. DCFS stated in the detention report, “Although there
are concerns regarding the mother’s ability to protect, it is the
Department’s assessment that home of parent, mother remains
the most appropriate plan for the children at this time. However,
court and DCFS involvement and supervision is [sic] essential to
ameliorate the risk to the children, as without intervention, the
risk would be significant.”
DCFS included photos of the text message exchanges
between father and Sh. Father included several requests that
Sh. not reveal that he was texting her and to delete the messages.
When Sh. asked why, father responded, “Cus ur a minor I mean
we not saying anything bad but yeah u know.” Father asked,
“What’s up with you and them booty shorts tho lol.” Another
message stated, “If I was younger or you were into older dudes I’ll
definitely holler at u.. just saying.” Father said that he and
mother were “always fighting” and that they were “taking a
break.” He also said, “Just thought you looked bomb asf,” and
“Damn why you teasing me like that girl lol passing right in front
of me you know I’m looking.” Father asked, “Are u a freak?” and
said, “Just saying lol idk like you would be down for anything if
it. Came down to it . . . And you’d be good at it.” Father told Sh.,
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“you look good,” and “You’re really cute as[ ]well.” Father asked,
“U still a virgin?” After Sh. answered, “Nah,” father said, “Knew
it . . .” “You down to do some shit or what?” “I could tell when a
girl had gotten fucked before.” He also told Sh., “U have that
dirty lil naughty voice” “and laugh.” He then asked, “So what u
down to [penis emoticon] Fuck?????????” Sh. responded, “N nah.”
On October 4, 2019, DCFS filed a juvenile dependency
petition under section 300, subdivisions (b)(1) and (d).2 Counts b-
1 and d-1 alleged that father “sexually abused the children’s
minor cousin” by sending Sh. sexually explicit text messages and
telling her not to tell anyone. Both counts further alleged that
mother “failed to demonstrate a protective capacity and refuses to
believe the minor cousin,” and allowed father “unlimited access”
to the children. In addition, both counts alleged that C.M. failed
to protect A. by “refus[ing] to believe the minor cousin” and
allowing A. to continue living with father. The two counts alleged
that the parents’ actions placed the children at risk of serious
physical harm, damage, and sexual abuse.
2 Section 300, subdivision (b)(1) allows for jurisdiction over
a child when the “there is a substantial risk that the child will
suffer, serious physical harm or illness, as a result of the failure
or inability of his or her parent or guardian to adequately
supervise or protect the child, or the willful or negligent failure of
the child’s parent or guardian to adequately supervise or protect
the child from the conduct of the custodian with whom the child
has been left . . . .” Subdivision (d) allows for jurisdiction when
“there is a substantial risk that the child will be sexually abused,
as defined in Section 11165.1 of the Penal Code, by his or her
parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child from
sexual abuse when the parent or guardian knew or reasonably
should have known that the child was in danger of sexual abuse.”
7
At the detention hearing on October 7, 2019, the juvenile
court ordered the children detained from father and released to
mother.3 For mother, the court ordered individual and family
counseling, sex abuse awareness counseling, and parenting
classes. For father, the court ordered individual counseling, a sex
abuse education program, and parenting classes. The court
ordered monitored visitation for father; mother could not be the
monitor.
The jurisdiction/disposition report filed November 12, 2019
stated that a CSW spoke with mother by phone on November 5.
Mother was living in a motel and looking for permanent housing;
she was unemployed and receiving financial assistance.
Regarding the allegations against father, mother said, “I have not
talked to [father] to ask him what happened or about the details
that were presented in Court. I read the text messages sent to
[Sh.] from my telephone. I honestly do not know what to believe.
All I know is that I am not in a relationship with [father] since
this situation started because I want to protect my children.”
Mother said she wanted to continue a relationship with father
“because we have our children in common.” She also said that
father had not seen the children since the last court date, October
7, 2019. Mother agreed to bring the children to the DCFS office
for an interview the following day, but she did not show up and
did not respond to text messages. Father also did not respond to
the CSW’s attempts to contact him.
The CSW interviewed Sh., who lived with her mother and
stepfather in maternal grandmother’s home. Sh.’s stepfather
was maternal grandmother’s son and mother’s brother. Sh. said
that in September 2019, she received a message from mother’s
3 A. was released to both parents, mother and C.M.
8
phone saying it was father texting her. She told the CSW about
some of the messages father sent, and said he texted a picture of
his penis from mother’s phone and from another phone. Sh. said
she deleted the photo because she did not want it on her phone.
Sh. said, “His messages scared me and made me feel
uncomfortable. I ignored his text messages.” Sh. said she told her
mother two days later, and her mother revealed that father had
also texted “sexual things” to her before. Sh. said she knew it
was father texting her, because she saw mother’s phone in his
hands during the text conversation.
DCFS stated that “mother continues to demonstrate her
ability to protect her children as she reported to have no contact
with” father. DCFS stated that a home of parent order “remains
the most appropriate plan for the children at this time. However,
DCFS seeks Court involvement and supervision to ameliorate the
risk to the children. . . .” DCFS noted that mother had not yet
enrolled in any counseling or classes.
B. Detention from mother
The jurisdiction hearing was continued to January 29,
2020. A supplemental report filed before the hearing stated that
mother had not started parenting classes because she was on a
waiting list with one agency and had not been successful in
enrolling at other agencies. Mother was still living in motels; she
reported she was having trouble finding an apartment that would
accept five children. Mother was working in the evenings, and a
paternal aunt was watching the children while she worked.
Despite DCFS’s requests, mother had not provided any
information about the paternal aunt. Mother had not yet
enrolled the children in family counseling and the children’s
medical and dental exams were overdue. DCFS also noted that
9
“mother refuses to follow up with housing and shelter referrals
provided by DCFS.”
On January 23, 2020, C.M. told the CSW that mother was
leaving A. with paternal grandmother for days at a time. C.M.
said A. had lice, and mother “will not do anything to resolve that
issue.” He also said mother and father had recently purchased a
new car, and three weeks earlier he saw father in the car with
mother and the children. A. reported that father told mother to
“get rid of” A. C.M. expressed concern that mother’s instability
was making A. feel unstable, and he asked to have full custody of
A.
DCFS’s efforts to contact father were unsuccessful. On
January 10, mother said the last time she had seen father was on
December 23 during a monitored visit with the CSWs. However,
DCFS noted C.M.’s statements saying he saw the children with
father, and noted that in one interview, J. said, without
prompting, “I haven’t [seen] my dad,” then he “looks to mother for
approval after he makes the statement about not seeing his
father.” DCFS stated that it “is concerned that mother is
allowing father . . . to have unlimited contact with the children”
and that mother coached the children into saying they had not
seen father. DCFS recommended that the children be detained
from mother, that C.M. be given sole custody of A., and that
parents have monitored visitation with the other four children.
On January 29, 2020, the juvenile court continued the
jurisdiction hearing to April 15, 2020. On February 6, DCFS filed
a request for an order to remove the children from mother’s
custody, citing concerns about mother allowing father access to
the children, mother’s unstable housing, and mother’s failure to
enroll in any programs. DCFS noted that mother and the
10
children had been homeless since October 2019, and despite
repeated offers of housing assistance, mother continued to move
from motel to motel. DCFS also noted that at a visit on January
23 the CSW observed that the children had lice; mother said she
uses a lice brush on the children. In addition, DCFS reiterated
C.M.’s concerns about A. and the children’s contact with father.
The juvenile court signed a detention order removing the children
from mother’s care the same day, February 6, 2020.
On February 11, 2020, DCFS filed a section 385 petition
seeking to vacate the home-of-parent order for mother. A
detention report filed the same day stated that A. was living with
C.M. and the other children were in foster care. The report
stated that on February 7, the day CSWs removed the children
from mother’s care, “[A.] reported that she had not been honest
with CSW, as when she was with mother they don’t sleep in
Motels every night. [A.] reported that they only sleep in Motels
when CSW has an appointment with mother and the children.
[A.] reported that mother and [father] usually park at a storage
parking lot and sleep in the car. [A.] said they park at the ‘Extra
Space Storage’ and it is very dark and scar[y] when the lights go
out.” The CSW asked why A. had not told her this before, and A.
said mother warned that the children would be taken away and
placed in foster care if A. told the truth, so she “kept quiet
because she was scare[d].” A. said that “if her brothers and sister
smell like poop [it] is because they don’t take showers or get
cleaned in a long time.” A. also said that father “has always been
with them . . . and sleeps with the family in the car.” A. said
every time mother had an appointment with the CSW, father
would leave; when the appointment was over, mother would call
father and say, “you can come back, she left.” A. also told the
11
CSW about father telling mother to “get rid of” A.; A. and C.M.
filed a report with the sheriff’s department regarding this
statement. A. also said she could not see out of her left eye, but
mother had not taken her to a doctor to have it checked.
A second CSW who assisted with transporting the children
on February 7 noted that J. “was scratching his head
desperately.” J. told the CSW, “I have little animals [on] my
head. It itches when they wake up, but it doesn’t itch when they
are asleep.” J. said mother takes off the animals but they come
back. J. also reported sleeping in the car with the family,
including father, at the storage facility. The CSW noted that S.
was dirty and not well-groomed, and she also had lice. The
children’s clothing was dirty and had a strong odor.
On February 7, maternal grandmother said she could not
care for the children because she was recovering from surgery
and was using a wheelchair. DCFS noted that “on numerous
occasions she asked mother to come and stay in [maternal
grandmother’s] house with the children, as maternal
grandmother has an extra bedroom. However, maternal
grandmother stated that mother refused.”
DCFS reported that father still had not responded to any
attempts to contact him, and mother claimed to not know where
he was. Mother was not in compliance with the case plan or
court orders; she had not enrolled in any classes or therapy.
DCFS’s assessment “clearly indicated that the family was at
High Risk for child abuse/neglect and the care of the children . . .
is compromised under the care of the father.” DCFS also stated,
“There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the court.”
12
At the section 385 hearing on February 13, 2020, mother’s
counsel argued that this was “a family law issue,” because A.’s
father, C.M., “is making up allegations regarding the mother and
[father] because he wants full custody, and the mother refuses to
give him full custody.” Mother also submitted evidence that some
of the children had received medical and dental care. Mother’s
counsel also argued that mother “denies that [father] has seen
the children. The children deny that as well.” Minors’ counsel
pointed out that mother’s contentions did not reflect the facts, the
children had been sleeping in the car with mother and father,
and A. “herself notes that she was being coached by mother.”
The court granted the section 385 petition, finding that
mother had allowed father “unsupervised access to the children,”
and that mother failed to provide for the needs of the children
“despite the numerous opportunities provided by the department
social worker.” The court ordered A. to be released to C.M., and
that placement be secured for the remaining children. The court
further ordered that mother have monitored visitation.
C. Jurisdiction and disposition
A supplemental report filed June 19, 2020 stated that A.
continued to live with C.M. and the other four children remained
in foster care. In April 2020, a CSW visited A. at C.M.’s home. A.
reported that although she attempts to call mother, mother does
not respond. DCFS had no concerns about C.M., and
recommended that he be stricken from the petition.
In May 2020, mother and father attended a child-family
team meeting by phone. Mother and father stated that their goal
was to reunify with the children. DCFS noted that mother and
father “appear to be motivated to do better in their lives for their
children.” The foster parents noted that mother and father were
13
affectionate and loving during visits. The report did not include
clear information about the parents’ housing situation or whether
parents had enrolled in any services.
DCFS recommended that the section 300 petition be
sustained. It further recommended that A. be released to the
custody of C.M., and jurisdiction over her terminated with a
family law order granting C.M. sole legal and physical custody.
With respect to the remaining children, DCFS recommended that
reunification services be provided, not to exceed six months.
The adjudication hearing was continued several times. On
August 5, 2020, DCFS filed a last-minute information stating
that mother completed a parenting education program on June
25. DCFS’s recommendations regarding the children remained
the same.
A last-minute information filed August 28, 2020 stated that
mother and father had a new home. The CSW noted that the
home was “clean with a few boxes in the kitchen. Mother stated
that they are working towards organizing the home and are
currently working on the children’s bunkbeds.” Mother had
enrolled in individual counseling and was on a waiting list for
sexual abuse awareness classes. Father said he had started
parenting classes but he was “dropped from” the course due to his
inconsistent attendance. He was planning to call to see if the
program would allow him to re-enroll. Father had not enrolled in
individual counseling or sexual abuse awareness classes. The
last-minute information included a sheriff’s department report
from August 28, 2019, which was generated after Sh. reported
that father sent her the sexual text messages. The sheriff’s
report noted the allegations, noted that Sh. and her brother
14
reported they had not been touched inappropriately, and stated
there was “no evidence of a crime.”
A last-minute information filed September 11, 2020
included statements from father regarding the allegations in the
petition. Father said he never texted Sh.: “It never happened. It
was somebody else who texted her pretending to be me. I don’t
know who texted her pretending to be me.” Father also said, “I
feel this whole situation was set up by [Sh.’s] mother . . . and her
stepfather” because “[i]n the past, [Sh.’s mother] and I spoke and
texted each other with sexualized messages.” Father thought
that Sh.’s stepfather “tried retaliating against me because he
found out [that Sh.’s mother] and I were communicating in a
sexual manner.” Father said that after the family left maternal
grandmother’s home, they were homeless. When paying for
motels became too expensive, the family slept in the car. Father
said a previous CSW on the case told him that he, mother, and
the children could stay together.
A last-minute information dated November 18, 2020 stated
that mother completed a child sexual abuse awareness course on
November 9, 2020. Mother had also enrolled in individual
counseling and had completed two sessions. Father had not
enrolled in any services. DCFS recommended that reunification
services continue, stating that it “continues to have concerns
regarding mother’s ability to be protective of her young children
who are of tender age.” Father said he moved out of mother’s
apartment in October and was sleeping in a car; mother said she
was still financially dependent on father. Mother also “considers
[father to be] her source of emotional and financial support.”
DCFS expressed concern that if the children were released to
mother, “she will allow father to have full access to the children.”
15
DCFS asked the court to declare the children dependents of the
court and allow DCFS to liberalize visitation with parents as
warranted. DCFS also asked that A. be released to C.M., and
jurisdiction over her be terminated with a family law order
granting C.M. sole legal and physical custody. In a last-minute
information filed November 20, 2020, DCFS recommended that
mother have unmonitored visitation with the children, and that
mother be ordered to continue individual counseling.
At the jurisdiction/disposition hearing on November 23,
2020, the parties did not submit any additional evidence. The
minors’ counsel asked that count d-1 be sustained, stating that
father’s actions of “soliciting sexual activity” from the children’s
minor cousin constituted sexual abuse under section 300,
subdivision (d). Minors’ counsel also argued that “[t]his was a
pretty egregious case of mother failing to protect,” because even
after reading the text messages, mother said she did not know
what to believe. Moreover, throughout the case mother allowed
father contact with the children and encouraged the children to
lie to DCFS. Minors’ counsel stated that although mother had
completed some of the court-ordered programs, “I think we need
to take this slow and see that the class worked and that mom will
be protective of the kids.”
Mother’s counsel asked that the petition be dismissed, or
that mother be stricken from the petition and be deemed non-
offending because “[t]here’s no evidence of current risk.”
Mother’s counsel said there was no evidence of any further
incidents concerning father, and “[m]other and father have
separated. Mother no longer lives with father.” Mother’s counsel
also said mother was willing to comply with all DCFS
requirements.
16
Father’s counsel argued that Sh. “is not a child, per se. It is
somebody who is a minor who is protected by the statute that
disallowed sexual relations between an adult and somebody
under 18. You could hardly say that a developed teenager – an
interest in a developed teenager is an unnatural or abnormal
sexual interest.” Father’s counsel continued, “[Father’s]
inelegant request for asking for [sic] sex and his other conduct
here does not rise to the level of sex abuse pursuant to 300(d) and
the criminal code to which it refers.”
DCFS’s counsel joined the arguments of minors’ counsel,
and asked the court to sustain both counts. DCFS’s counsel
noted that father and Sh. were family members, and father told
Sh. not to disclose his actions to anyone, so “the concern of the
department is the threatening environment and the threat to not
tell and to not disclose.” In addition, while the case was pending,
mother had been dishonest with DCFS and coached the children
to lie about their contact with father, showing “that at this time
there is a risk, a substantial one, posed by mother’s behavior.”
DCFS’s counsel also noted that mother continued to maintain
contact with father, and father had not made any progress with
respect to the case plan. DCFS also requested that C.M. be
dismissed from the petition.
The court dismissed C.M. from the petition and sustained
the remainder, finding that father’s actions met the definition of
sexual abuse under section 300, subdivision (d). The court also
stated that mother refusing to believe that the incident occurred
and allowing father to continue contact with the children
constituted a failure to protect. The court therefore found the
children to be persons described by section 300, subdivisions
(b)(1) and (d).
17
Regarding disposition, mother did not object to the plan to
award custody of A. to C.M., with unmonitored visitation as long
as father was not present. As to the younger children, mother’s
counsel asked that the children be released back into mother’s
care, or if the court ordered the children to remain in foster care,
unmonitored visitation. Father’s counsel argued that requiring
father to complete a sexual abuse program for perpetrators was
“wrongheaded,” because “[t]hat course is for people who have a
problem being attracted to children.” The minors’ counsel asked
that the children remain in foster care, and to “slowly liberalize,
given the extent of how mother was lying to the department and
allowing [father] around.”
The court found that placing the children in mother’s home
would be detrimental to the welfare of the children, and would
present a substantial danger to the children. For the four
younger children, the court ordered unmonitored visitation for
mother, monitored visitation for father, and continued family
reunification services. The court terminated jurisdiction over A.
with an exit order providing for joint legal custody, full physical
custody to C.M., and unmonitored visitation with mother with
the requirement that father not be present.
Mother and father each timely appealed.
DISCUSSION
Mother asserts that the juvenile court’s disposition order as
to the four youngest children was erroneous because “the
evidence showed [the children] would not be in any danger if
placed with her since she had already completed a sexual abuse
awareness program, parenting classes, and was no longer living
with father.” Father joins mother’s arguments. DCFS asserts
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that the juvenile court’s order was supported by substantial
evidence.
“A juvenile court’s removal order at a disposition hearing
will be affirmed on appeal if it is supported by substantial
evidence. [Citation.] ‘Evidence sufficient to support the
[juvenile] court’s finding must be reasonable in nature, credible,
and of solid value; it must actually be substantial proof of the
essentials that the law requires in a particular case. [Citation.]”
[Citation.] We consider ‘the evidence in the light most favorable
to respondent, giving respondent the benefit of every reasonable
inference and resolving all conflicts in support of the [challenged
order].’” (In re V.L. (2020) 54 Cal.App.5th 147, 154.)
“A dependent child shall not be taken from the physical
custody of his or her parents . . . unless the juvenile court finds
clear and convincing evidence” that “[t]here is or would be 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 minor’s parent’s . . . physical custody.” (§ 361,
subd. (c)(1).) A child may also be removed from a parent’s home if
the child is “deemed to be at substantial risk of being sexually
abused[ ] by a parent . . . and there are no reasonable means by
which the minor can be protected from . . . a substantial risk of
sexual abuse without removing the minor from his or her parent.”
(§ 361, subd. (c)(4).)
Mother argues that although she was “she was not
protective in the beginning of the case” when she allowed father
access to the children, this “was understandable under the
circumstances” because mother was “confused by the allegations,”
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as father “had denied the allegations entirely, she did not know
what to think.” She asserts that by the time of the jurisdiction
and disposition hearing, she “was cooperating with [DCFS] and
the court to protect her children,” and she had completed several
programs.
The record does not support mother’s argument that she
was confused about the situation or about the court’s orders
separating the children from father. To the contrary, mother’s
actions made clear that she knew what was expected of her, but
instead she attempted to deceive DCFS by sending father away
during CSW visits, renting motel rooms to mislead DCFS about
the family’s living situation, telling DCFS she had not seen
father, and coaching the children to lie about living with father.
In addition, DCFS noted that mother continued to refuse housing
assistance for her and the children, both from DCFS and
maternal grandmother. Mother warned A. that if she told the
truth about their living situation, the children would be taken
away. Thus, mother continued to stay with father despite
knowing that doing so placed her at risk of losing custody of her
children. Mother’s actions do not suggest an innocent
misunderstanding about the allegations, the case, or what was
required to protect the children.
Although mother had started to comply with the case plan
by the time of the jurisdiction hearing more than a year after the
case was initiated, the court was not required to ignore the
months of mother’s failure to protect the children. (See, e.g., In re
Cole C. (2009) 174 Cal.App.4th 900, 917 [in determining
disposition, “the court may consider the parent’s past conduct as
well as present circumstances”].) Mother had been slow to
recognize her need to protect the children, she remained
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financially dependent on father, and father still had not obtained
stable housing, suggesting an ongoing risk that mother would
allow father back into the family home. While mother’s progress
toward the case goals was commendable, the court’s decision to
remove the children from mother, while allowing DCFS to
continue liberalizing her visitation, was supported by the history
of the case.
Mother also argues there were less drastic alternatives
available, such as allowing the children to live with her and
ordering services. She compares this case to In re Steve W. (1990)
217 Cal.App.3d 10 (Steve W.), in which the mother’s boyfriend
caused the death of one of the mother’s two children. The
surviving child was declared a dependent of the court under
section 300 and removed from the mother’s care. The mother
appealed the disposition order, asserting that there was no
evidence that the child was in any danger in the mother’s care.
(Id. at p. 16.) The Court of Appeal reversed. It noted that in
light of the mother’s past abusive relationships, the trial court’s
concern was “that she would enter a new relationship with yet
another abusive type of person.” (Id. at p. 22.) But because the
mother was not in any relationship at the time of the hearing,
any such concern was speculative, and “speculation about the
mother’s possible future conduct is not even sufficient to support
a finding of dependency much less removal of the physical
custody of the child from the parent.” (Ibid.)
As DCFS points out, the mother in Steve W., was deemed
non-offending, while here mother was an offending parent.
Moreover, the court in Steve W. emphasized that the offending
parent was incarcerated and would not have access to the child.
(Steve W., supra, 217 Cal.App.3d at p. 22.) Here, by contrast,
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mother continued her relationship with father, who continued to
deny the allegations and had not completed any of the programs
ordered by the court. The reasoning of Steve W. is not persuasive
here.
Substantial evidence supports the juvenile court’s
disposition order removing the children from mother’s custody.
DISPOSITION
The juvenile court’s disposition order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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