In re Z.H. CA4/3 ( 2021 )

Filed 12/2/21 In re Z.H. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Z.H., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES G060406
AGENCY,
(Super. Ct. No. 21DP0555)
Plaintiff and Respondent,
OPINION
v.
S.H.,
Defendant and Appellant.
Appeal from orders of the Superior Court of Orange County, Antony C.
Ufland, Judge. Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for
Defendant and Appellant, S.H.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
* * *
S.H. (Mother) appeals from the juvenile court’s jurisdiction and disposition
rulings removing her son from her custody. (Welf. & Inst. Code, §§ 300, subds. (b)(1) &
(g), 361, subds. (c)(1) & (c)(5).) The juvenile dependency petition underlying this case
was precipitated by a report the child witnessed a domestic violence incident that
occurred between Mother and her boyfriend. While Mother contends there was
insufficient evidence to justify the court’s rulings, the record demonstrates substantial
evidence supporting the rulings; we affirm.
I
FACTUAL AND PROCEDURAL HISTORY
A. Investigations Leading to the Child’s Detention
While living with her seven-year-old son Z.H. in May 2021, a report was
made to Child Protective Services that days earlier, on April 27, while Z.H. had been
home, Mother had been involved in a domestic violence incident with her boyfriend,
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Kevin. It was reported that Mother disclosed being choked and left with marks, bruises,
and a black eye. It was also reported domestic violence between Mother and Kevin had
been ongoing since 2014 and that Mother disclosed she was working as a prostitute and
Kevin was her pimp.
On May 11, police officers and social workers of the Orange County Social
Services Agency (SSA) visited Mother’s residence—an apartment where, according to
Mother, she had been renting a bedroom from her aunt for a few months. At first, only
Z.H. and Kevin were at the residence, where social workers observed a strong order of
marijuana as well as marijuana paraphernalia on the kitchen island within Z.H.’s reach.
Mother arrived later and stated she smoked marijuana in her bedroom, possessed a
medical prescription for marijuana, and stored it on a high kitchen shelf or in her
bedroom closet, away from Z.H.
1
Mother was enrolled in services at the time of the report for domestic violence abuse
based on a past incident with a prior boyfriend.
2
A social worker separately interviewed Z.H., Kevin, and Mother. Z.H.
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stated he had recently witnessed Kevin—choke his mother. The child stated that after
the violence was over, he gave Mother a hug and asked if she was okay. Z.H. also stated
that, about two years earlier, he had witnessed Kevin “‘tussle’” with his mother and pull
her hair out. Z.H. also stated that, around the same time, Kevin punched him in the chest
after doing something “really bad.” Z.H. said he had not been injured, was not afraid of
Kevin, and was only afraid of Mother when she was going to “spank” him. When asked
what he would want through a magic wand, the child said he would want to be rich and
for his parents to stop fighting. Z.H. said he only knows one kind of drug and when
asked to identify it, the child smiled and pointed inside his home where the marijuana
odor had been observed; he would not speak on the subject any further.
Kevin denied having any substance abuse issue but admitted he smoked
marijuana and claimed his last arrest had been for marijuana in 2016. Kevin stated he
and Mother had been together on and off since 2010, denied domestic violence had ever
occurred between them, and claimed the April 27 incident had only consisted of him and
Mother holding each other back from leaving the apartment. Kevin explained he is not
Z.H.’s biological father but counted the child as his own, along with his two biological
children who lived with their mother in Los Angeles County. Kevin stated he had only
spanked Z.H. twice in his life, with a flat hand on the child’s buttocks, and denied there
had been any other instances of physical discipline.
Mother claimed her most recent arrest had been for prostitution in 2016 but
that she no longer engaged in that type of activity. She denied Kevin was her pimp and
explained the two had been in an “on and off” relationship since 2010. Mother claimed
she was pursuing a career in cosmetology that Kevin was supportive of, that she felt safe
with him, and was the happiest she had ever been in her life. Mother asserted Z.H.’s
2
Z.H. at times referred to Kevin as his father or Bobby.
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biological father had been a random person, that his name was unknown, and that Kevin
was the only father Z.H. had ever known. Concerning the April 27 incident, Mother
claimed she sustained a mark on her face but thought she may have caused it herself
during the “‘tussle’” with Kevin. She denied Kevin struck or choked her and asserted
that Kevin had never abused or physically disciplined Z.H. When the social worker
communicated that Z.H. had reported witnessing Kevin choke her, she denied the child
witnessed the incident, claiming she had checked after the incident and had seen the child
still napping. Mother confirmed she did not call the police after the incident and refused
to seek a restraining order against Kevin.
The SSA’s independent investigation showed both Mother and Kevin
misrepresented the extent of their criminal histories during their interviews. Kevin’s
criminal history included, among other matters, a misdemeanor conviction for cruelty to a
child.
On the day of their interviews, Mother and Kevin signed a safety plan with
the SSA that included Mother’s agreement to continue receiving domestic abuse services;
the next day, Mother told a social worker she was ending her participation in the services
and would not participate in additional family services offered by the SSA. Mother
claimed there was no need because her domestic life was going well, and that the April
27 incident had occurred “mainly because of her” and did not happen as she had initially
reported it. When the social worker expressed concern that Mother could be minimizing
the danger Z.H. faced by being left alone with Kevin, Mother responded Z.H. was safe
and repeated that Kevin would never harm the child. Mother also maintained Z.H. had
not witnessed any past domestic violence incidents and Mother denied Kevin previously
may have punched Z.H. in the chest. Mother added that as the social worker probably
had not grown up like Mother, who had been abused as a child, the worker did not
understand Mother’s life.
4
That same day, an SSA social worker spoke with a domestic violence
advocate who previously had spoken with Mother. The advocate stated Mother had
disclosed having a history of domestic abuse, including one where she was choked,
pinned to the wall and hit by Kevin, resulting in a black eye. The advocate was
concerned Mother did not fully understand how Z.H.’s experiences with domestic
violence could impact the child’s safety and well-being and reported that Mother
disclosed she was still an active sex worker and would leave Z.H. with babysitters who
the advocate believed were not well known by Mother.
The next day, an SSA social worker spoke with Kevin’s parole officer, who
communicated that Kevin was on interstate parole which prohibited Kevin from leaving
Los Angeles County, consuming marijuana, and contacting Mother, his pimping victim.
Although the officer initially stated that Kevin could be sent to jail based on the SSA’s
information, the officer later reported Kevin would not be arrested and his parole term
would be completed in the next few days.
The following day, the SSA applied for a protective custody warrant for
Z.H., which the juvenile court authorized. When the police and SSA social workers
arrived at Mother’s residence with the warrant, the odor of marijuana as well as
paraphernalia on the kitchen island were again observed. Mother “grabbed the child by
the hand and started to tell him [the SSA social worker] wanted to take him away because
[the social worker] didn’t believe the child was safe with” Mother. When the social
worker advised Mother the communication to Z.H. was inappropriate due to his age,
Mother invited the worker to discuss the concerns in front of Z.H.
B. Postdetention Events
SSA filed a petition on May 24 alleging, among other things, that Mother
had failed to adequately protect Z.H. from domestic violence and failed to provide
regular care for Z.H. due to substance abuse. At the hearing the following day, Mother
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generally denied the allegations, stated she was willing to participate in services, and
denied she previously had declined participation.
The juvenile court amended and sustained the petition. The court
commended Mother for enrolling in services and set the case for a combined jurisdiction
and disposition hearing for three weeks later. Z.H. was placed with foster parents and the
following week, an SSA social worker met with Mother, who reported Kevin had left her
so she could reunify with Z.H., but also that she intended to reconcile with Kevin in the
future. Mother participated in developing an initial case plan she signed, agreeing to
participate in counseling, a domestic violence program, a parenting program, and
substance abuse treatment. Upon being reinterviewed at his foster home, Z.H. denied
witnessing any domestic violence, having any knowledge of drugs, and even knowing
who Kevin was.
C. The Combined Jurisdiction and Disposition Hearing
The juvenile court conducted its combined jurisdiction and disposition
hearing on June 16 and June 17. Senior social worker Stephanie De Luna of the SSA
testified that although Kevin no longer lived at Mother’s residence, De Luna believed
“there [was] still a significant threat to the child being placed in [M]other’s care,”
because of further exposure to domestic violence, primarily because of Kevin, and a risk
of Z.H. consuming marijuana because of Mother’s substance abuse.
Mother testified the April 27 incident occurred when Kevin had been
packing so he could leave Mother and she “egg[ed]” him on by helping him fold his
clothes. Mother testified Kevin put his right hand around Mother’s neck and stated it was
“uncomfortable” but denied experiencing pain or difficulty breathing. Mother
maintained Z.H. had not witnessed the incident and testified there had only been one
prior incident of domestic violence with Kevin, about two and a half years earlier, when
Z.H. had been with a babysitter.
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Mother testified Kevin had moved out of her home the day after Z.H. was
detained by the juvenile court and that she had not had any contact with him in the
intervening four weeks. Mother testified it “might be best for [her and Kevin] not to
reconcile.” She explained she previously had expressed a desire to reconcile with Kevin
because he was the only father Z.H. knew and she wanted the child to have a father in his
life. When Mother’s counsel asked whether Mother had “requirements for [Kevin] to
complete before” considering reconciliation, Mother stated she would require Kevin to
complete a domestic violence class before even speaking and “possibly, anger
management.”
Mother now admitted she had previously declined the SSA’s offered family
services in Orange County but explained she had subsequently changed her mind on the
issue. Mother testified that because of four classes she had attended to that point in
time—three personal empowerment classes and one counseling class—she had learned
“telltale signs” of when a domestic violence incident might occur and had a plan for how
to leave with Z.H. if a risk arose. Mother also testified she knew how to defend herself
and would notify law enforcement if an incident occurred.
Although Mother acknowledged that domestic violence could generally
pose a risk to Z.H., she maintained Kevin did not pose a risk because he had “never put a
hand on” the child. Mother also asserted her marijuana use did not impact her ability to
safely parent Z.H. because she only smoked it for insomnia when Z.H. was sleeping. She
asserted the physical presence of marijuana alone did not pose a risk to Z.H. because she
could keep it locked away from him. Mother explained her previous report of smoking
“six blunts a day” was an exaggeration, but admitted she had smoked recreationally
during the daytime.
During oral arguments, SSA’s counsel asserted Mother’s story had
“changed after the consequences set in” and that she was still minimizing the extent of
the domestic violence incident. Z.H.’s counsel joined the SSA’s comments and argued
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Mother did not appreciate the risk of harm that existed based on the discrepancies
between the child’s accounts of what he observed and Mother’s denial of the points.
Z.H.’s counsel also argued Mother did not understand the risks posed by her marijuana
use, pointing out Mother had not articulated a safety plan for an emergency situation that
could arise while she was under the influence of marijuana, other than dialing 911.
Counsel acknowledged it was clear Mother loved Z.H. but asserted she was only
beginning to learn about the risks her lifestyle posed for Z.H.
Mother’s counsel asserted Mother had made “significant progress” since
the SSA’s investigation had started five weeks earlier, pointing out Mother had adjusted
from smoking marijuana in her living room to her bedroom and was planning to get a
lockbox for her marijuana and paraphernalia. Mother’s counsel analogized to this court’s
recent opinion in In re Ma. V. (2021) 64 Cal.App.5th 11 (Ma. V.) to assert her history of
domestic violence and marijuana use were not sufficient to justify the juvenile court’s
exercise of jurisdiction or a dispositional order to remove custody of Z.H. from her.
Mother’s counsel admitted Mother had initially refused offered services but asserted
Mother had since then credibly committed to participate, showing Mother would “put
[Z.H.] first.”
D. The Juvenile Court’s Jurisdiction and Disposition Orders
The juvenile court took jurisdiction under Welfare & Institutions Code
3
section 300, subdivisions (b)(1) and (g) and entered a dispositional order removing
custody of Z.H. from Mother, under section 361, subdivisions (c)(1) and (c)(5). The
court explained its “paramount concern” was the risk of domestic violence posed by
Mother’s willingness to reunify with Kevin, who the court found was an “abusive, violent
individual” based on his history. The court found there was insufficient evidence
demonstrating Mother’s recently claimed willingness to protect Z.H. from Kevin.
3
All further undesignated statutory references are to the Welfare and Institutions Code.
8
The court distinguished Ma. V., stating the precipitating domestic violence
incident in this case was still “extremely fresh” and explained it was not Mother’s status
as a domestic violence victim that concerned the court but instead evidence showing she
refused to keep Kevin out of her life in order to protect Z.H.
The court’s dispositional order set a six-month status review hearing and
continued Z.H.’s placement with foster parents, family reunification services for Mother
based on her case plan, and Mother’s visitations with Z.H. Mother timely appealed.
II
DISCUSSION
Mother contends there was insufficient evidence to support the juvenile
court’s jurisdiction and disposition orders, arguing the SSA failed to prove a sufficient
risk of physical harm to Z.H. because the evidence showed the child lived in a loving
home where “all his needs were being met.” Mother additionally challenges the
dispositional order, asserting the court failed to consider a less drastic measure than
removal of the child from Mother’s custody.
“‘In reviewing the jurisdictional findings and the disposition, we look to see
if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In
making this determination, we draw all reasonable inferences from the evidence to
support the findings and orders of the dependency court; we review the record in the light
most favorable to the court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.” (In re R.T. (2017) 3 Cal.5th 622, 633
(R.T.).)
A. Substantial Evidence Supports the Juvenile Court’s Jurisdiction Over Z.H.
A juvenile court may exercise jurisdiction over a child if a preponderance
of the evidence shows a parent’s failure or inability to adequately supervise or protect the
child results in a “substantial risk” the child would suffer “serious physical harm or
illness.” (§ 300, subd. (b); see In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1211.)
9
“When a dependency petition alleges multiple grounds for its assertion that a minor
comes within the dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence.” (In
re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
“Exposure to domestic violence may serve as the basis of a jurisdictional
finding under section 300, subdivision (b).” (In re R.C. (2012) 210 Cal.App.4th 930,
941.) A “court need not wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child.” (In re N.M. (2011)
197 Cal.App.4th 159, 165.) “Although there must be a present risk of harm to the minor,
the juvenile court may consider past events to determine whether the child is presently in
need of juvenile court protection.” (In re A.F. (2016) 3 Cal.App.5th 283, 289.)
Substantial evidence supports the juvenile court’s conclusions that, at the
time of the court’s decision, Z.H. faced a substantial risk of suffering serious physical
harm because Mother’s relationship with Kevin remained unresolved. The record
contains evidence Kevin had choked Mother in Z.H.’s presence and that, two years
earlier, Kevin had punched Z.H. in the chest when the child was five years old.
Critically, the risk demonstrated by Kevin’s past violence was compounded by the fact
that Mother denied that Kevin posed a risk to Z.H., denying the child had witnessed or
incurred any past violence, in the face of evidence by Z.H. himself to the contrary. (See
In re J.N. (2010) 181 Cal.App.4th 1010, 1025-1026 [in evaluating current risk, court
should consider evidence of parent’s current understanding of and attitude toward the
past conduct that endangered a child].) In addition to Mother’s minimization of the
domestic violence risk, Mother’s assertion that the presence of marijuana in her home did
not pose a risk to Z.H. because she kept it away from him, despite the SSA’s observations
of paraphernalia within the child’s reach both times they entered Mother’s home before
the child was detained, demonstrates support for the juvenile court’s findings.
10
As she did in the juvenile court, Mother relies on Ma. V., supra,
64 Cal.App.5th 11, to argue the juvenile court’s orders amount to the court punishing her
for being a victim of domestic violence. Her argument is not persuasive, however,
because Ma. V. is factually inapt. There, a mother’s three children were detained after
the mother and her boyfriend argued while in a car with the eldest child, resulting in the
boyfriend putting the mother in a headlock and choking her. The boyfriend was arrested
but, after the mother did not renew an emergency restraining order, he returned that same
month and got into another altercation with the mother, resulting in his rearrest. (Id. at
pp. 14-15.)
The mother in Ma. V. was dealing with mental health issues, including
posttraumatic stress disorder, and consumed marijuana based on a medical prescription.
(Ma. V., supra, 64 Cal.App.5th at pp. 16-17.) Due to the COVID-19 pandemic, 10
months elapsed between the initial detention of the mother’s children and the juvenile
court’s jurisdiction and disposition rulings. (Id. at p. 23.) By the time of the rulings, the
SSA in that case did not dispute the relationship between the mother and her boyfriend
had ended. (Id. at p. 22.) Notwithstanding, the court concluded the “old issue” was still
relevant to its decision to exercise jurisdiction over the mother’s children and remove
them from the mother’s custody. (Id. at pp. 22-23.)
A panel of this court reversed and remanded, holding that “stale evidence
was insufficient to support the [juvenile] court’s jurisdictional findings” and disposition
order. (Ma. V., supra, 64 Cal.App.5th at p. 22, 25.) The panel noted a “troubling trend”
of cases where, “[e]ven after a mother manages to distance herself from the abuser . . .
SSA and the juvenile court continue to use the history of domestic violence as a basis to
remove the children.” (Id. at pp. 25-26.) The Ma. V. court explained the juvenile court
had erroneously “focused on old issues that were resolved by the time of the
jurisdictional hearing.” (Id. at p. 21.)
11
Both the timing circumstances and undisputed end of the dangerous
relationship in Ma. V. are absent here. Mother’s domestic violence incident had occurred
a mere six weeks before the challenged orders, as opposed to the 40 weeks that elapsed
there. Equally important, while “[i]t was undisputed [in Ma.V that] the perpetrator of the
violence against the [m]other . . . had left the family home and [the m]other had ended
her relationship with him” (Ma. V., supra, 64 Cal.App.5th at p. 22), in this case the
juvenile court explicitly found the relationship between Mother and Kevin unresolved
and substantial evidence supported that conclusion. The record shows the April 27
domestic violence incident was still “extremely fresh” at the time of the court’s June 17
decision, particularly because both Mother and Kevin had reported their relationship as
being “on and off” over the past decade. In sum, there was ample ground for the court to
conclude that 27 days since last speaking did not indisputably show the relationship had
concluded.
While extremely valuable, Mother's participation in her case plan services
does not alter our conclusion that substantial evidence supports the juvenile court’s
jurisdictional findings. It was well within the juvenile court’s prerogative to assess the
credibility behind Mother’s assertions about the nature of her relationship with Kevin,
including her testimony that she would not reconcile with Kevin unless he completed
some counseling. (R.T., supra, 3 Cal.5th at p. 633.) Particularly given that Mother
recanted the April 27 incident during the SSA’s investigation and took contradicting
positions about whether she initially refused services, it was reasonable for the court to
severely discount Mother’s claimed intentions about what boundaries she would set to
continue a relationship with Kevin. Mother’s beginning stages of participation provide
no ground to reverse the court’s jurisdictional findings.
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B. Substantial Evidence Supports the Juvenile Court’s Disposition Order Removing
Custody of Z.H.
For dispositional orders, section 361, subdivision (c), provides in relevant
part that a juvenile court can order a child removed from the physical custody of his
parent where clear and convincing evidence shows “[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” removal. The SSA is held to a
heightened clear and convincing evidence burden of proof “‘in light of the
constitutionally protected rights of parents to the care, custody and management of the
children.’” (In re Ma. V., supra, 64 Cal.App.5th at p. 24.) “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 fact finder could have found it highly probable that the fact was true.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
The heightened standard of proof for the juvenile court’s disposition order
does not provide a ground for reversal. The same substantial evidence supporting the
court’s jurisdictional findings, discussed above, also supports the court’s disposition
order because the circumstances of Mother’s unresolved relationship with Kevin
sufficiently showed a substantial danger to Z.H.’s physical well-being that justified his
removal from Mother’s custody.
Finally, Mother contends we should reverse the juvenile court’s disposition
order based on section 361, subdivision (c)(1)’s requirement that a court must find no
reasonable means of protecting the minor other than removal before ordering it.
According to Mother, the court failed to “consider[] less drastic measures” such as “in
home parenting” or “regular check[s]” by an SSA social worker before ordering Z.H.
removal from Mother’s physical custody.
13
Mother’s contention on the point amounts to a request for us to reweigh the
evidence and reach a conclusion different from the juvenile court, an argument that
ignores the respective roles of the juvenile court and this court. (R.T., supra, 3 Cal.5th at
p. 633; see In re E.E. (2020) 49 Cal.App.5th 195, 217 [“‘[t]he trial court is in the best
position to determine the degree to which a child is at risk based on the assessment of all
the relevant factors in the each case’”].) Our review of the reporter’s transcript for the
combined jurisdiction and disposition hearing shows that before the juvenile court
rendered its dispositional decision, Mother’s counsel requested that Z.H. be released
outright to Mother or, in the alternative, conditionally released to her.
Given this record, we conclude substantial evidence supports the juvenile
court’s implied finding that no reasonable means of avoiding removal existed. (See In re
Corienna G. (1989) 213 Cal.App.3d 73, 83-84 [for determination in another stage of a
juvenile dependency case, substantial evidence supported implied finding].) In addition
to the substantial evidence supporting the court’s finding of danger posed by Kevin’s
abusive and violent nature, the record showed Mother was in a state of transition in her
life, focused on school that understandably required her energy and time. Indeed, the
SSA’s jurisdiction and disposition report documented that Mother had recently missed
attending Z.H.’s doctor’s appointment due to her school schedule. Based on that
evidence, it was reasonable for the court to conclude that Mother, a single parent who
told the SSA she did not want her family members finding out about this case, was not in
a position to protect her child from the risk the court found.
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III
DISPOSITION
The juvenile court’s jurisdiction and disposition orders are affirmed.
ZELON, J.*
WE CONCUR:
BEDSWORTH, ACTING P. J.
FYBEL, J.
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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