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

Filed 12/8/21 In re P.J. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 P. J. et al., Persons B308731, B309970
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. Nos.
20CCJP03795,
20CCJP03795 A-D)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
P. J. et al.,
Defendants and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Michael D. Abzug, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant P.J.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant J.J.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephen D. Watson Deputy County
Counsel, for Plaintiff and Respondent.
Mother J.J. appeals jurisdictional and dispositional orders
concerning her four children, D., T., P., and M. Father P.J., the
presumed father of P. and M., challenges the orders as they
pertain to those children. We conclude the jurisdictional order is
supported by substantial evidence, the juvenile court sufficiently
stated facts in support of removing the children from mother at
disposition, and the juvenile court did not abuse its discretion by
requiring monitored visitation. We accordingly affirm.
BACKGROUND
The Family
In June 2020, P. (then 6) and M. (then 3) lived with mother
in Los Angeles. D. (then 15) was with his father, D.H., in Las
Vegas, and T. (then 13) was with her father, C.B., in southern
California. The whereabouts of P. and M.’s father (father) were
unknown.
First 911 Call and Investigation
The family came to the attention of the Los Angeles County
Department of Children and Family Services (DCFS) on June 7,
2020, when the agency received an allegation of general neglect.
Per the report, mother called 911 and reported P. had been shot
in the head. Responding paramedics and law enforcement
officers quickly discovered that P. had not been shot; he and M.
2
were both unharmed. Mother apologized and informed the
responders that another of her sons had been shot in the head
and killed a few years ago.1 One of the law enforcement officers
stated that mother “was rambling” and “redirected the
conversation when they tried to get more information.” Mother’s
statements “did not make any sense” and she appeared to have
urinated on herself. The home was “filthy with clutter and trash
everywhere.” The officers thought “something was off” with
mother, but did not see a need for a Welfare and Institutions
Code section 51502 hold.
A DCFS children’s social worker (CSW) went to the family
home on June 10, 2020 to investigate. Mother answered the door
and became hostile toward the CSW, calling him names, using
profanity, and threatening to sue him and DCFS.3 The CSW
successfully met with mother two weeks later, on June 23, 2020.
1 Multiple parties later confirmed that D. was shot twice, in
the chest and hip, during a drive-by shooting when he was eight
years old. His wounds were not fatal.
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
3 Mother also mentioned that she remembered the CSW
“from last time”; the family had five prior referrals, the most
recent of which occurred in November 2019 and alleged the
children were “malnourished and skinny,” the home “has not had
electricity in a month,” and mother “is not in a stable mental
state [and] is using drugs.” That referral was closed as
inconclusive after it was determined that mother was purchasing
take-out food for the children and the utilities were on. The only
substantiated referral alleged that mother and C.B. engaged in
an episode of domestic violence in 2010, during which mother
“threw a potted plant” at C.B. and cut his arms and hands by
stabbing him with a broken piece of the pot.
3
At that time, mother denied all forms of abuse and neglect. She
explained that on the day of the incident, P. was eating and
choked. Mother helped him, then saw a flash from outside.
Mother noticed that P.’s head was down, so she immediately
thought someone had shot him and called 911. Mother said she
was not intoxicated at the time and believed she had a flashback
to 2014, when D. was non-fatally shot. She stated she was
“frantic that night” and “tried to pull herself together when
authorities were at the home.” Mother reported that she had
completed some therapy in 2015, after D.’s shooting, and said she
would like to be linked to more therapy services.
The CSW also spoke to P. and M. on June 23, 2020. P. was
difficult to understand due to a speech impediment, and M. was
“too young and was hard to understand,” but the CSW was able
to obtain some information from both children. Both said that
the police came to the house to check on P. after he choked. They
denied any shooting or injury. They also denied abuse, and
visual inspections pursuant to DCFS’s “disrobing policy” did not
reveal any marks indicating abuse. The CSW noted that both
children were dressed appropriately and “appeared happy and
healthy.”
The CSW spoke to mother over the phone on June 25, 2020.
Mother “became agitated” and used profanity toward the CSW.
Mother calmed down after the CSW explained that he was calling
only to ask when D. and T. were scheduled to return to the home
so he could interview them.
The CSW met with T. and her father, C.B., on July 6, 2020.
T. stated that she was not present on the day of the incident; she
had been living with C.B. since the onset of the pandemic. One
portion of the detention report states that T. denied abuse or
4
neglect by mother, and another portion states that T. said mother
sometimes hit her and “even threw a knife towards me.” T.
shared with the CSW text messages and voicemails in which
mother cussed her out for wanting to live with C.B., and told the
CSW she preferred living with C.B. because she gets along better
with him. T. also said that mother “is random with her mood”
and “sometimes talks to herself like she is having a conversation
with family.” T. denied any previous incidents of mother “acting
strange or assuming her or her siblings were shot.” T. usually
ate breakfast and lunch at school, and said mother brought home
prepared food for dinner.
C.B. denied abuse or neglect by mother but stated that he
would prefer T. stay with him because “he gives child a better
home environment.” C.B. denied knowledge of mother using
substances or struggling with mental health issues, though he
thought “mother might have some bipolar issues due to her mood
swings and always hostile [sic] with him during communication.”
C.B. said that T. told him that mother “stays up late and stares
at the wall sometimes” and “does not cook” for the children, but
he never called DCFS because “sometimes [T.] can lie or
exaggerate her interactions with mother.”
The CSW met with D. and his father, D.H., on July 7, 2020.
D. confirmed he had been shot when he was eight, and that he
was not present during the recent incident with P. D. denied
mother having prior flashbacks or mental health issues; he said
she was “just sometimes weird.” Like T., he mentioned that
mother often talked to herself; D. added that mother says “she is
talking to google on her phone and jokes about it.” D. reported
that mother and T. had a contentious relationship; mother yelled
profanities and made hurtful comments to T., and T. talked back,
5
disobeyed mother’s directions and curfew, and made
inappropriate posts on social media. D. said mother usually only
yelled at T., but had spanked her a few times. D. denied any
knowledge of mother throwing a knife at T., and he did not
believe she or his other siblings were in danger with mother. D.
told the CSW that he preferred living with D.H.
D.H. told the CSW he had no knowledge of any abuse or
neglect in mother’s home. He denied that mother had any mental
health issues; he attributed her mood swings to her financial
struggles and disputes about co-parenting. D.H. reported that
mother had used marijuana in the past but denied she had any
substance abuse issues. He further reported that D. had never
complained of any issues getting enough to eat; in short, he had
no concerns about D. or his siblings when they were in mother’s
care.
The CSW spoke with maternal grandmother (MGM) on
July 6, 2020. MGM stated that although she and mother did not
have “the best of a relationship,” she “visits every now and then.”
MGM expressed concern with mother’s ability to care for all four
children due to her “financial challenges”; she opined that mother
“needs to let the older children . . . go with their fathers,” because
“it is easier to manage less children for mother.” MGM denied
that mother had any history of mental health issues, but
suggested mother “could have some bipolar issues” as evidenced
by mother’s mood swings and aggression with people. MGM
denied any knowledge of abuse of the children or any issues with
mother feeding them.
6
Second 911 Call and Continued Investigation
On July 9, 2020, mother called 911 and yelled “1585 1585
to send help” before hanging up.4 The call was traced to mother’s
home, and both police and firefighters responded. A police officer
told the CSW that mother called 911 because P. choked and
vomited. He stated that it was difficult to get this information
out of mother, who did not focus on the responders’ questions and
“would switch topics in mid conversation to the [musical] artist
Chris Brown and how gangs in [her neighborhood] are.” Mother
also “became hostile[,] yelling at them and threatening to sue
them.” The officer did not suspect substance abuse; he thought
“mother has to have mental health issues.” Responders
witnessed P. vomit two more times, and told mother he needed to
be seen by a doctor. Mother said she would take him, but they
did not trust her so they escorted mother, P., and M. to the
hospital.
The CSW spoke with mother at the hospital. He noted that
she was dressed appropriately and did not appear to be under the
influence of any substances, though he “did smell a slight body
odor.” Mother told the CSW that P. began choking and threw up
as she was waking him from his nap; she believed he choked on
his saliva because she had startled him. Mother said she then
called 911. Mother denied neglecting or abusing the children in
any way. She admitted to “getting upset” and saying demeaning
words and profanity to T., but stated that she apologized
afterward if “it is too offensive.” Mother also admitted to
spanking T. on the buttocks with her hand and “explod[ing] on”
T. due to how T. and T.’s father treated mother, though she
denied any sort of knife incident. Mother said T. and D. could
4 1585 is a portion of mother’s address.
7
live with their fathers if they wanted to. The CSW reported that
mother “was coherent enough to fully answer” questions “without
any rambling or changing the conversation in mid sentence,” and
she signed a safety plan pursuant to which MGM would stay in
mother’s home during the day but go home to sleep at night.
MGM declined to care for P. and M. in her home “due to her
living situation.”
The CSW also spoke with P. and M. at the hospital. Both P.
and M. appeared happy and healthy and were dressed
appropriately for the weather. P. told the CSW that the police
came because he choked and threw up when mother woke him
up. M. also told the CSW that the police came to the home
because P. was choking. The CSW did not observe any marks or
bruises on either child, though he noted that P.’s shirt had “food
stains” and M.’s was “dirty.”
The CSW also spoke to Dr. Katheria, the physician who
treated P., and hospital social worker Karolin Ferrier. Dr.
Katheria did not see any injuries on P. and said “[t]here was no
indication of what caused the incident and the child is able to be
discharged.” Dr. Katheria reported concerns about mother’s
mental state; mother did not fully answer questions and changed
topics mid-sentence, but was not hostile. Dr. Katheria said the
hospital was unable to perform a mental health assessment
because mother did not come to the hospital for that reason and
had not otherwise consented. Ferrier told the CSW that mother
appeared to have some type of mental health issue. Mother was
unable to provide fully coherent answers to questions, “she would
switch topics about dating Chris Brown and gang violence,” and
she vacillated between being nice and acting irritated. Ferrier
expressed concern about mother’s mental state and her ability to
8
properly care for the children; she noted that both P. and M. had
been wearing dirty clothes and “all of them smelled like body odor
like they did not take[ ] a bath and it was strong soon as you walk
in the room.”
After the CSW left the hospital, he received an email from
Ferrier stating that mother refused to comply with the safety
plan and leave the hospital with MGM. The email further stated
that a doctor said mother “began shouting she was a ‘God’ and
she did not agree to leave with her mother.” Both a doctor and
nurse reported that mother “came back and forth out of
Pediatrics, stating she was not going”; the nurse further stated
that mother cursed at her and told her to shut up.
The CSW spoke with MGM the following day. MGM
confirmed that mother became upset when MGM arrived at the
hospital to take her home, and mother refused to leave with
MGM. When MGM stopped by the home later that evening,
mother and the children were there. MGM stated that mother
did not want her to stay at the home despite the safety plan, but
MGM planned to stop by multiple times a day to check on P. and
M.
Detention, Section 300 Petition, and Initial Hearing
DCFS obtained a removal order and detained all four
children from mother on July 14, 2020. Two days later, it filed a
juvenile dependency petition under section 300, subdivision
(b)(1), alleging that mother “has mental and emotional problems,
including aggression, delusions, paranoia, mood swings, bizarre
and erratic behaviors, which renders the mother incapable of
providing regular care for the children. Such mental and
emotional problems on the part of the mother, endangers the
9
children’s physical health and safety and places the children at
risk of serious physical harm, damage, and danger.”5
In advance of the initial hearing, DCFS filed a last minute
information stating that MGM had called to express concerns
that mother may be abusing some sort of illicit substance. DCFS
asked MGM why she failed to raise these concerns earlier, and
she replied that mother “is talking to herself and keeps oddly
walking around outside.” MGM also stated that she “was
informed” that T. had “downplayed” her statements to the CSW
in hopes of preventing her younger siblings from being placed in
foster care.
The court held the initial hearing via WebEx on July 21
and July 22, 2020.6 The court found D.H. was the presumed
father of D., C.B. was the presumed father of T., and father was
the alleged father of M; it deferred making findings regarding
father’s paternal relationship to P. The court found DCFS made
a prima facie case for jurisdiction, but the children could be
released to mother’s care if mother agreed to safety conditions the
court emphasized were “not voluntary or optional.”7 The safety
conditions required mother to (1) immediately enroll in individual
counseling, to which DCFS was to provide referrals; (2)
“immediately take steps to have a psychiatric assessment” and
5 The petition also included a second count alleging that P.
and M. were at risk due to father’s “criminal history and
conduct.” This allegation was ultimately dismissed and is not at
issue here.
6 The court made emergency detention findings as to D. at
the July 21 hearing, but continued D.’s proceedings to July 22 so
counsel could be appointed for him.
7 D. and T. were also released to their respective fathers’
care.
10
comply with any recommended treatment; (3) submit to weekly
random or on-demand drug testing and test negative, or at least
with decreasing levels of marijuana; (4) make herself and the
children available for unannounced home visits by DCFS; and (5)
participate in the family preservation services to which DCFS
was ordered to refer her. The court directed DCFS to “bring it to
the court’s attention” if the conditions were violated. It also told
mother directly that she was ordered to comply with the safety
conditions, and advised her, “[i]f you do not, the Department will
bring it to my attention. . . . I may go ahead and detain the
children based on any further evidence of violating the safety
conditions. Do you understand?” Mother stated, “Yes. I have no
problem with everything you said.” The court ordered DCFS to
provide mother with “case appropriate referrals” and scheduled
the jurisdiction hearing for August 20, 2020.
Jurisdiction/Disposition Report
DCFS filed a jurisdiction/disposition report on August 18,
2020. In preparing the report, it spoke with members of the
family about the allegations and their current situations. On
August 13, DCFS spoke with D., who was still living with D.H.,
by phone. D. stated that when he lived with mother, she did a lot
of “crazy stuff,” like talking to herself and claiming she was
talking to musicians Chris Brown and Little Wayne on her
Google phone. D. clarified that mother never physically hurt the
children or herself, but “said some hurtful things” to T. When
asked about the conditions at mother’s home, D. stated that at
one point, the electricity had been turned off for two to three
months; he and T. went to the park to do their homework. D.
further stated that there was food in the house, “but if there
11
wasn’t I would call [MGM] and she would bring us some food. I
had to call her every week or two weeks or so for that.”
DCFS visited P. and M. at mother’s home on July 31, 2020.
Neither child was able to provide “meaningful” statements; DCFS
again noted P.’s “severe speech impediment” and stated that M.
“has a very limited vocabulary.” DCFS reported that P. was
“clean, well-groomed and without marks and bruising.” No
assessment of M. was reported, other than a statement that
DCFS had no immediate safety concerns for the children. The
home was “sparsely furnished” and “cluttered and there were
clothing and items thrown on the floor everywhere.”
DCFS did not speak with T., who had returned to living
with mother; it stated that “she is unable to talk at home with
her mother and that she works when she is not home.” DCFS
represented that it would “continue to engage” T. and “provide an
update to the court.” DCFS also did not discuss the allegations
with mother during the July 31 home visit; the only comment in
the report is that mother said she was “working on undergoing a
mental health assessment.” DCFS called mother on July 28,
August 4, August 6, August 12, and August 13, but received no
response. Mother also was a no-show for her drug test on July
22, 2020, though she told DCFS she had taken the test.
D.H., D.’s father, spoke with DCFS over the phone. He said
mother seemed fine when he talked with her on the phone
approximately twice a week, but both D. and MGM had told him
mother was “acting differently, like mentally,” over the past few
years.
MGM also spoke with DCFS over the phone. She stated
that mother rarely answered the phone when anyone called,
including MGM, the children’s schools, and DCFS. MGM further
12
reported that the schools sometimes called her instead, because
she was listed as an emergency contact. MGM stated that she
was concerned for the children’s well-being. She had not spoken
to mother since July 21, 2020, “the day she got the kids back.”
She nevertheless reported that mother “talks to me crazy,” such
that “her subject content just doesn’t make sense,” and “walk[s]
up and down the driveway for hours talking to herself.” MGM
further stated that mother was “paranoid” and “has lashed out
verbally in anger at people.” MGM added that T. had been
“pick[ing] up the slack” for mother, by “carrying out a parent’s
responsibility like caring for the younger kids [and] going grocery
[shopping].” MGM stated that she had encouraged mother to
send D. and T. to live with their fathers during the pandemic,
because “they would have nothing to eat” on weekends; mother
bought fast food for P. and M., “but the older kids would get
nothing.” MGM said, “I go over there on a weekly basis to make
sure that she was feeding them properly,” because “[w]hen she
goes into her bizarre state, making sure her kids eat three meals
a day is not a priority for her. Even her eating is not a priority
and she has lost a lot of weight.” MGM similarly reported that
cleaning was not a priority: “the home was a disaster,” with “food,
and junk all over,” and minimal furniture. Like D., she stated
that the home’s electricity had been turned off for an extended
period, as had the gas.
DCFS followed up with police officers who had responded to
mother’s two 911 calls. Los Angeles Police Department officer
Rodney Ucles, who responded to the first 911 call, stated that
mother was “calm and collective [sic] one minute, and explain the
story to us, then she would snap back to being very emotional,
apologetic and hysterically crying.” Ucles “wouldn’t say it was a
13
mental health episode, but she said she had lost a child and I
don’t know what it is like to lose a child so empathized with her
emotional state.” Ucles stated that the children were asleep
when mother called, and were shocked to see first responders, so
he assumed mother “had some type of nightmare” that caused
her to believe an incident occurred. He said that he had been
concerned about the “overall environment” of the home, which
was “unkempt and unclean,” with “clothes and trash everywhere,
old food on the stove.” The “biggest eyebrow raiser,” however,
was that mother “looked like she peed herself.” The children
seemed fine.
Los Angeles Police Department officer Burgos responded to
the second 911 call. He said mother “was having a mental
psychotic episode,” “rambling, saying she was Chris Brown’s
girlfriend, and engaging in incoherent conversation.” Burgos
further stated that he and other emergency responders “ended up
taking the kid to the hospital because we didn’t feel that the mom
was in the right mental state to take him.”
In its assessment of the family, DCFS reported that
“mother’s engagement with the Department has been
inconsistent.” When mother interacted with DCFS, she exhibited
“severe mood swings” and “exhibit[ed] verbally aggressive
behaviors.” DCFS noted that mother had not been observed to be
under the influence of any substances, but due to mother’s failure
to test it had been unable to determine if substance abuse was a
“contributing factor in the mother’s delusional, erratic, and
concerning behaviors.” DCFS reported that mother had not yet
undergone a mental health assessment, and her “unaddressed
mental and emotional issues” were “concerning and create a
detrimental home environment,” particularly given P.’s inability
14
to communicate clearly and M.’s “tender age.” It also noted
MGM’s concerns that mother had “parentified” T. by having her
work and care for her younger siblings. On the positive side,
DCFS observed that mother had “demonstrated resiliency” after
D. was shot, “utilizes her family support in times of need or crisis,
despite any unresolved differences,” and “is very resourceful and
utilized concrete supports such as the Housing Authority Section
8 program . . . to meet the basic needs of the family and maintain
stable housing.”8
August 20, 2020 Last Minute Information and Hearing
On August 20, 2020, the scheduled date of the
jurisdictional hearing, DCFS filed a last minute information
notifying the court that father, whose whereabouts had been
unknown, contacted DCFS the day before. Father stated that he
8 The day after DCFS filed the jurisdiction/disposition
report, mother filed a notice of objections to hearsay statements
pursuant to section 355, which provides in relevant part that
objected-to hearsay evidence “shall not be sufficient by itself to
support a jurisdictional finding or any ultimate fact upon which a
jurisdictional finding is based,” unless DCFS makes the declarant
“available for cross-examination.” (§ 355, subds. (c)(1), (c)(1)(D).)
Mother specifically objected to “any and all” statements made by
MGM. During the jurisdiction hearing, however, mother’s
counsel did not mention the objections and instead asked the
court to find MGM not credible. Counsel for DCFS also stated,
with no objection from mother’s counsel, “I do believe mother’s
counsel intended to withdraw her 355 objections to the maternal
grandmother, who was available via subpoena. I do believe her
statements will come in.” The record does not contain a ruling on
the section 355 objections, though it does indicate that MGM was
present on August 20, 2020, the date for which the jurisdiction
hearing was originally scheduled. Mother includes MGM’s
statements in the statement of facts in her opening brief.
15
could not remember the last time he had spoken to mother. He
further stated, “I know she’s crazy, kind [of] mental, but that’s in
a relationship. She takes care of the kids real good. She don’t
clean up a lot, but she handle[s] kids well.”
Father and his newly appointed counsel made an initial
appearance remotely at the August 20, 2020 hearing. His
counsel requested a continuance of the jurisdiction hearing, as
did counsel for D. and T. The court found good cause and
continued the jurisdiction hearing to September 8, 2020.
Before the proceedings concluded, however, DCFS
requested that the court deem the jurisdiction/disposition report
as a section 385 petition seeking detention of the children from
mother pending adjudication. The children’s counsel asked the
court to detain all four children from mother, but to release D.
and T. to their fathers. Counsel acknowledged that she
previously had argued in favor of releasing the children to
mother, but stated she had changed her position in light of
mother’s failure to comply with the “very specific safety
conditions” the court had ordered. Counsel expressed concern
that mother had stopped communicating with DCFS, had not
received a mental health assessment or enrolled in counseling,
had not ensured P. was set up to participate in virtual schooling,
and was allowing T., a very young teen, to work “all summer to
help support the family.”
Mother’s counsel opposed detention, arguing that mother
“has been compliant with the services worker going to her home”
and that DCFS had not noted any safety concern with the home.
Counsel indicated that mother’s lack of response to DCFS’s phone
calls was due to “issues with her phone,” and asserted that DCFS
should have exercised its right to conduct more unannounced
16
visits. Counsel asserted that mother had made an appointment
for a psychiatric assessment, and that there was “no evidence”
that DCFS had provided other relevant referrals for mother.
The court ultimately granted the section 385 petition and
ordered the children detained from mother. It found that “there
can’t be a safety plan put in place” to prevent detention, because
“[w]e attempted to do that, but . . . the situation has not
improved.” D. and T. remained released to their fathers. The
court ordered monitored visitation for mother. It also ordered
DNA tests for P. and M. at father’s counsel’s request, and
specifically directed DCFS to “make sure the mother has referrals
that she needs in order to address the issues that caused the
court to detain the children today.” It further ordered DFCS to
“provide updated information . . . in regard to the mother’s
participation in services, and any change in recommendation.”
September 3 and 9, 2020 Last Minute Informations
DCFS filed a last minute information on September 3,
2020. It reported that it had assessed D.H.’s home and found it
appropriate for D. It further reported that, “after several
requests, the mother has not provided the Department with
documentation to support her statements that she has completed
a mental health evaluation.” Additionally, mother had not signed
a consent form to enable DCFS to access her mental health
records, verified her enrollment in any programs, or drug tested.
DCFS stated that it continued “to have grave concerns” about
mother’s unaddressed mental health needs and failure to comply
with court orders.
On September 9, DCFS filed a second last minute
information. It stated that it had texted mother on August 25 to
notify her that she had been “set up for drug testing” and provide
17
her with details how to participate. Mother “called the CSW
after the message was sent and stated that ‘I do not have to test.
That is not what the Court ordered. I went down to the court and
got the paperwork and I don’t see where I have to test. I already
tested once already. I got the paperwork. I’m not on drugs.’” The
CSW texted mother on September 2 to see if she had started
participating in any services. The text included the names of
several service providers mother could contact. Mother called the
CSW and stated that none of the service providers to whom she
had been referred would accept her Medi-Cal insurance. The
CSW informed mother that the providers did accept Medi-Cal,
but mother “still went on to say that they don’t.” DCFS stated,
“Mother is not being proactive and [is] continuing to deny that
she has to drug test and has not provided CSW Miller with any
documentation for mental health services.” It recommended that
all prior orders remain in effect.
Jurisdiction Hearing
The court held the jurisdiction hearing on September 9,
2020. It admitted into evidence all of the DCFS reports and last
minute informations without objection. The matter then
proceeded to argument. Counsel for the children asked the court
to sustain the section 300, subdivision (b)(1) count against
mother, because the evidence showed that “mother’s mental
health has impacted her ability to provide appropriate care to the
children. The older children were not being fed, and the home
environment was very concerning.” Counsel for DCFS joined this
argument, and further asserted there was a nexus between
mother’s declining mental health and the conditions of the home,
the utilities being turned off, and MGM needing to ensure the
children had food. Mother’s counsel argued that there was no
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substantial evidence that mother placed the children at risk. She
emphasized that mother’s anger had been directed at DCFS, not
the children, and asserted there was “no noted diagnosis” of a
mental health problem. Mother’s counsel also urged the court to
find MGM’s statements not credible, because “[t]here’s no
indication she spends regular time with this family.” All three
fathers submitted without making substantive argument.
The court found there was substantial evidence “to find
that the mother has failed to care for and supervise the children
appropriately.” It added that “mother appears to have a long and
ongoing mental health history . . . and continues not to be able to
care for and provide for her children in a reasonable manner. It
appears they are being neglected . . . due to her inability or her
unwillingness to seek out appropriate mental health care
treatment.” It accordingly found that the section 300, subdivision
(b)(1) count concerning mother’s mental health had been proven
by a preponderance of the evidence.
The court ordered DCFS to prepare a last minute
information in advance of the disposition hearing scheduled for
October 1, 2020. It further ordered DCFS to provide mother with
a written visitation schedule and a specific drug testing location.
October 1 and 26, 2020 Last Minute Informations
In a last minute information filed on October 1, 2020,
DCFS reported that mother failed to appear for drug tests on
September 2, 11, and 15. It further reported that mother had
provided a “Client Discharge Plan” from Exodus Recovery dated
September 18, 2020. According to that plan, mother “was
assessed and diagnosed with Unspecified Adjustment Disorder”;
no medications were prescribed, but mother was directed to
follow up with mental health services with a different provider
19
(to whom DCFS had referred mother previously). DCFS
reiterated that it continued to have “great concerns” about
mother caring for P. and M. It recommended mother receive
family reunification services. It recommended the same services
for father, even though he had yet to submit to the DNA test he
requested.
The court continued the disposition hearing to November 2,
2020. DCFS accordingly filed an additional last minute
information on October 26, 2020. DCFS reported that it had not
been able to reach mother because her phone number had been
disconnected. To the CSW’s knowledge, mother was not
participating in any services; mother failed to appear for drug
tests on September 25, October 2, and October 7. Despite
mother’s disconnected phone, DCFS heard from D., T., and P. and
M.’s caregiver that mother was in regular phone contact with the
children. Mother “did not want in-person visits” with P. and M.
because she believed it would “be too difficult for her.” Both
children were doing well in their foster care placement.
Disposition Hearing
The court held the disposition hearing on November 2,
2020. It admitted all of the DCFS reports and last minute
informations without objection. It found that father was the
presumed father of P. and M., despite the still-pending DNA
tests.
The children’s counsel asked the court to adopt DCFS’s
recommendations and grant D.H. and C.B. full legal custody of D.
and T., respectively, with unmonitored telephone visitation for
mother. She further requested that P. and M. remain in suitable
placement, where they were doing well; she asserted it would be
detrimental to place them with father, who continued to contest
20
paternity, or mother, “based on the sustained allegation and her
continued failure to comply with any services or testing at this
time.” Counsel for DCFS joined this argument and asked the
court to remove the children from mother and father under
section 361, subdivisions (c) and (d). She further requested the
court order an Evidence Code section 730 mental health
evaluation for mother.
Father’s counsel argued that P. and M. should be placed
with father. Barring that, counsel requested unmonitored
visitation for father and objected to the proposed case plan to the
extent it recommended a mental health assessment for him as
well. Counsel for D.H. and C.B. largely submitted on DCFS’s
recommendation.
Mother’s counsel argued that mother did not pose a risk to
the children. “Although mother has some odd and bizarre
behaviors, even when she has gotten frustrated, that frustration
has never been directed at her children, and the evidence
indicates . . . that she was taking good care of her children.”
Counsel asserted that “most of the statements to the contrary
come from maternal grandmother,” and again asked the court to
disregard those statements. Counsel acknowledged the
arguments that mother had failed to comply with the safety
conditions, but stated that “we are predisposition, and mother’s
clear distrust of the system and the social worker does not in and
of itself make her a risk to her children.” Mother’s counsel
opposed removal and asked the court to return the children to
mother.
The court found that D. and T. were safely in the custody of
their fathers, and that it was “in the interest of justice and in the
best interest and welfare of the children that jurisdiction be
21
terminated.” The court accordingly terminated jurisdiction over
D. and T., subject to family law orders giving D.H. and C.B. full
physical and legal custody over them. Those orders were entered
on November 6, 2020.
With respect to P. and M., the court acknowledged mother’s
counsel’s argument that it could not order mother to participate
in services “preadjudication.” “Nevertheless,” the court
continued, “a parent’s [un]willingness to abide by . . . safety plans
and other programs that are designed to protect the welfare of
the children and also to maximize the probability of reunification
are troubling. And the absence of it, I think, supports [DCFS’s]
position that removal is appropriate on that ground, especially
when, as set forth in the jurisdictional findings, which I now
adopt, the mother was exhibiting behavior which is . . .
detrimental and inconsistent to the safety and welfare of her
children. So based on the totality of the record, I believe that
removal at this juncture is appropriate. But she’s going to be
given reunification services. So today is today and tomorrow is
tomorrow. And hopefully she will get herself squared away and
get back with her children in the very near future. That’s my
hope.” The court added that “Dependency Order 415 is attached,”
before stating that P. and M. were removed from both mother
and father. The court ordered an Evidence Code section 730
evaluation for mother. It also ordered her to enroll in individual
counseling, and the children to receive age-appropriate mental
health counseling. The court ordered monitored visitation for
both mother and father, “with discretion to liberalize.”
Mother timely appealed from the jurisdiction and
disposition orders concerning all four children. Father timely
appealed only from the disposition orders concerning P. and M.
22
DISCUSSION
I. Substantial evidence supported the jurisdiction order.
Mother contends, and father joins as to P. and M.,9 that
substantial evidence does not support the order taking
jurisdiction over the children. We disagree.
A. Legal Framework
Section 300, subdivision (b)(1) authorizes a juvenile court to
take jurisdiction over a child where the child “has suffered, or
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 by the willful or negligent failure of the child’s
parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the
parent's or guardian’s mental illness, developmental disability, or
substance abuse.” (§ 300, subd. (b)(1).) A juvenile court’s findings
that a child is described by section 300, subdivision (b)(1) must be
supported by a preponderance of the evidence. (§ 355, subd. (a);
In re I.J. (2013) 56 Cal.4th 766, 773.) Thus, DCFS must prove “(1)
one or more of the statutorily-specified omissions in providing
care for the child . . .; (2) causation; and (3) ‘serious physical harm
9 Father’s notice of appeal listed only the disposition orders.
He nevertheless joins mother’s arguments against the
jurisdiction orders concerning P. and M. As DCFS acknowledges
in its response brief, notices of appeal are to be liberally
construed where the respondent could not possibly have been
misled or prejudiced. (In re Joshua S. (2007) 41 Cal.4th 261,
272.) DCFS concedes, and we agree, that it is not prejudiced by
father’s joinder of mother’s jurisdictional arguments.
23
or illness’ to the minor, or a ‘substantial risk’ of such harm or
illness.” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561.)
The juvenile court may not presume a child suffers harm
due to a parent’s mental illness. (In re Travis C. (2017) 13
Cal.App.5th 1219, 1226.) That said, “[i]t is not necessary for
DCFS or the juvenile court to precisely predict what harm” a
child may suffer due to his or her parent’s mental illness. (Id. at
p. 1227.) “Rather, it is sufficient that Mother’s illness and choices
create a substantial risk of some serious physical harm or
illness.” (Ibid.) The juvenile court should consider the totality of
the circumstances when determining whether a child is at risk of
harm. (In re J.K. (2009) 174 Cal.App.4th 1426, 1440.) It need not
wait until a child has suffered serious abuse or injury to assume
jurisdiction and take steps to protect the child. (In re I.J., supra,
56 Cal.4th at p. 773.)
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “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 determination, and we note
that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.
[Citations.] ‘“[T]he [appellate] court must review the whole record
in the light most favorable to the judgment below to determine
whether it discloses substantial evidence . . . such that a
24
reasonable trier of fact could find [that the order is appropriate].”’
[Citation.]” [Citation.]’” (In re I.J., supra, 56 Cal.4th at p. 773.)
B. Analysis
The juvenile court exercised jurisdiction under section 300,
subdivision (b)(1) after finding that “mother has failed to care for
and supervise the children appropriately.” Specifically, the court
found that mother did not seek appropriate treatment for her
mental health issues and appeared to neglect and inadequately
care for the children. These findings were supported by
substantial evidence in the record.
In response to either a flashback or a nightmare, mother
called 911 to report P. had been shot in the head when he had not
been. Responders to the call observed that “something was off”
about mother, and she was unable to answer their questions or
provide accurate information about the shooting incident
involving D. They also observed that the house was “filthy with
clutter and trash everywhere.” Approximately one month later,
mother called 911 a second time to report a minor incident in
which P. vomited. Responders again noted that mother seemed
to be experiencing a “mental psychotic episode,” telling them that
she was Chris Brown’s girlfriend and otherwise “engaging in
incoherent conversation.” The responders took P. (and mother,
and M.) to the hospital to be seen by a doctor, because they did
not believe mother “was in the right mental state” to ensure P.
received proper follow-up care. Multiple people who interacted
with the family at the hospital noted they were wearing dirty
clothes and had body odor. A reasonable factfinder could
conclude from this evidence that mother’s mental problems were
interfering with her ability to provide appropriate care to P. and
25
M., who were only six and three at the time and were unable to
effectively communicate their needs.
Additional evidence supports this conclusion as to D. and T.
as well. Multiple people told DCFS that mother had mood swings
and acted aggressively; father said she was “crazy, kind [of]
mental,” and MGM said she spent hours walking up and down
the driveway rather than supervising or interacting with the
children. Mother herself told DCFS that she had “exploded” on
T., and T. showed the CSW angry and profane text messages and
voicemails mother had sent her. Both D. and MGM told DCFS
that the family had been without electricity for months at a time,
and D. and MGM had to take initiative in ensuring that the
children, particularly the older ones, had sufficient food to eat.
D., T., and various other individuals with whom mother
interacted said mother interjected nonsensical claims into
conversations and was not able to answer questions or provide
relevant information about the children when necessary.
Although the children “appeared happy and healthy,” the lack of
utilities, food, supervision, and appropriate responses to acts
such as vomiting or backtalking placed them at risk of harm.
These problems remained largely unresolved at the time of
the jurisdiction hearing despite the provision of services and
referrals. Mother refused to comply with the safety plan mere
hours after its creation and subsequently violated the safety
conditions the court imposed to ensure the children could remain
in her care. Mother refused to drug test and falsely claimed the
services to which DCFS referred her did not accept her insurance.
Mother eventually saw a mental health provider and was
diagnosed with “unspecified adjustment disorder,” but there is no
indication she followed through with the treatment plan. Mother
26
also failed to maintain contact with DCFS, ignoring numerous
calls and disconnecting her phone.
Mother contends the court improperly “focused on Mother’s
mental condition and the question of future risk rather than the
threshold issue of whether mother had failed to supervise,
protect, or provide regular care to the children.” This argument,
which appears to be drawn from In re Joaquin C., supra, 15
Cal.App.5th at p. 561, is not persuasive. The court expressly
found that “mother has failed to care for and supervise the
children appropriately”; its focus was on mother’s past and
current ability to care for the children, not a future risk.
Moreover, even if the court had focused on the future, that could
still support the exercise of jurisdiction. Section 300, subdivision
(b)(1) is implicated whether “[t]he child has suffered” or “there is
a substantial risk that the child will suffer, serious physical
harm.”
Mother further asserts that the juvenile court lacked the
authority to order her to complete a mental health assessment,
drug test, or otherwise cooperate with DCFS prior to
adjudication. The intended implication of this assertion is
unclear, though it appears mother may be suggesting that her
lack of compliance with orders could not support the exercise of
jurisdiction. This is incorrect.
“[B]efore jurisdiction, the court can issue orders detaining
the child and orders directing the social services agency to
provide services, but it cannot order or otherwise compel the
parent to cooperate with the agency. A parent’s participation in
services, whether before jurisdiction and disposition or after, is
always voluntary.” (In re E.E. (2020) 49 Cal.App.5th 195, 209.)
However, “[t]hat’s not to say there are no consequences for failing
27
to cooperate in the investigation or participate in services. One
consequence is that those failures ‘can be used later as evidence
in a review hearing or a hearing on a [section 300] petition.’
[Citation.]” (Ibid.) The juvenile court thus was permitted to
consider mother’s failure to comply with the safety plan and
safety conditions, and her lack of cooperation with DCFS.
Mother emphasizes portions of the record that cut against a
jurisdictional finding: DCFS’s observations that the children
appeared happy and healthy and the home’s messy condition
posed no immediate safety hazards, father’s comment that she
“handle[s] kids well,” DCFS’s acknowledgment that mother was
“resilient.” We do not reweigh evidence, however, and must
uphold the court’s orders if any substantial evidence,
contradicted or uncontradicted, supports them. (See In re I.J.,
supra, 56 Cal.4th at p. 773.) Although the evidence here may be
mixed, sufficient evidence supports the court’s jurisdictional
findings.
In her reply brief, mother contends the instant case is
analogous to In re Ma.V. (2021) 64 Cal.App.5th 11, which was
published after mother filed her opening brief. We disagree.
There, the appellate court expressly found that the mother
“resolved the key concerns warranting jurisdiction” prior to the
jurisdiction hearing. (In re Ma. V., supra, 64 Cal.App.5th at p.
23.) Here, as discussed above, mother took few steps to address
the mental health concerns that prompted the petition. The
juvenile court did not err in taking jurisdiction over the children.
II. The court adequately stated the facts on which it based
removal.
Mother next contends that the juvenile court failed to state
the facts supporting its decision to remove the children from her
28
at the disposition hearing.10 Father joins this argument as to the
removal of P. and M. from mother.
A. Legal Framework
“At the dispositional hearing, a dependent child may not be
taken from the physical custody of the parent under section 361
unless the court finds there is clear and convincing evidence
there is or would be a substantial danger to the child’s physical
health, safety, protection, or physical or emotional well-being if
returned home, and that there are no reasonable means to
protect the child’s physical health without removing the child
(detriment finding).” (In re D.B. (2018) 26 Cal.App.5th 320, 328;
see also § 361, subd. (c)(1).) This additional inquiry and
heightened burden of proof are “‘premised on the notion that
keeping children with their parents while proceedings are
pending, whenever safely possible, serves not only to protect
parents’ rights but also children’s and society’s best interests.’
[Citation.]” (In re D.P. (2020) 44 Cal.App.5th 1058, 1066-1067.)
Even under these rigorous standards, however, “[t]he parent
need not be dangerous and the minor need not have actually been
harmed before removal is appropriate. The focus of the statute is
on averting harm to the child.” (In re D.B., supra, 26 Cal.App.5th
at p. 328.)
10 We reject DCFS’s contention that mother forfeited this
argument by failing to raise it below. Mother’s counsel expressly
objected “to any removal” at the disposition hearing. Indeed,
before making its ruling, the court acknowledged that mother
was “not happy. She wants the kids. I get all that.” Father did
not raise the issue below; his counsel argued for an order placing
P. and M. with him. DCFS does not argue forfeiture as to father,
however. To the extent his argument may have been preserved,
its success is wholly tied to the success of mother’s.
29
Before ordering removal, the juvenile court must determine
“‘whether reasonable efforts were made to prevent or eliminate
the need for removal of the minor from his or her home,’ and
‘shall state the facts on which the decision to remove the minor is
based.’” (§ 361, subd. (e); In re D.P., supra, 44 Cal.App.5th at p.
1065.) Such facts may include “the parents’ past conduct and
current circumstances, and the parent’s response to the
conditions that gave rise to juvenile court intervention.” (In re
D.B., supra, 26 Cal.App.5th at p. 332, citing In re Cole C. (2009)
174 Cal.App.4th 900, 917.)
We review disposition orders for substantial evidence. (In
re V.L. (2020) 54 Cal.App.5th 147, 154.) Because the clear and
convincing standard of proof applies at disposition, however, “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.
In conducting [our] review, the court must view the record in the
light most favorable to the prevailing party below and give
appropriate deference to how the trier of fact may have evaluated
the credibility of witnesses, resolved conflicts in the evidence, and
drawn reasonable inferences from the evidence.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012; see also
In re V.L., supra, 54 Cal.App.5th at p. 155 [holding that “O.B. is
controlling in dependency cases”].)
B. Analysis
Mother contends the trial court’s removal order did “not
identify any facts supporting removal or make any findings
concerning whether there were reasonable means to prevent
removal as required by section 361, subdivision (c). Instead, the
court simply referenced Dependency Order 415 . . . .”
30
Dependency Court Order 415 consists of boilerplate
language stating that the court has read and considered the
evidence before it and makes various findings, including those
required by section 361, subdivisions (c) and (e). (See In re D.P.,
supra, 44 Cal.App.5th 1065-1066.) The language of Dependency
Court Order 415 is generic, not case-specific. Reference to
Dependency Court Order 415 accordingly “is not a replacement
for a statement of the facts supporting the court’s decision to
remove a child from a parent’s custody.” (Id. at p. 1067.)
“Contrary to section 361, subdivision (e)’s command to ‘state the
facts on which the decision to remove the minor is based’ (italics
added), Dependency Court Order 415 merely recites the findings
the juvenile court must draw from the supporting facts to order
removal under section 361. Incorporating Dependency Court
Order 415 into a removal order without stating the facts that
support removal does not comply with the mandate in section
361, subdivision (e).” (Ibid.)
Here, the court incorporated Dependency Court Order 415
into the removal order, stating that it was “attached, but need
not be recited.” However, this was not the sole finding the court
made. The court also stated that it found mother’s unwillingness
to abide by the safety plan and other programs “troubling” and
“removal is appropriate on that ground.” It continued, “especially
when, as set forth in the jurisdictional findings, which I now
adopt, the mother was exhibiting behavior which is . . .
detrimental and inconsistent to the safety and welfare of her
children. I believe that removal at this juncture is appropriate.”
The court is permitted to state the facts on which removal is
based orally (see In re Heather A. (1996) 52 Cal.App.4th 183,
196), and here it not only stated that removal was based on
31
mother’s noncompliance with the safety plan and other programs,
but also incorporated the findings it made at the jurisdiction
hearing.
Even if these statements are insufficient, any error is
harmless. The failure to make required findings under section
361, subdivision (c) “will be deemed harmless where ‘it is not
reasonably probable such finding, if made, would have been in
favor continued parental custody.’” (In re Jason L. (1990) 222
Cal.App.3d 1206, 1218.) As explained in In re D.P., supra, 44
Cal.App.5th at p. 1068, this is because removal orders are
“subject to the constitutional mandate that no judgment shall be
set aside ‘unless, after an examination of the entire cause,
including the evidence, the [appellate] court shall be of the
opinion that the error complained of has resulted in a
miscarriage of justice.’” “Under this mandate, a ‘miscarriage of
justice’ will be declared only when the appellate court, after
examining the entire case, is of the opinion that ‘“it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.”’” (Ibid.)
It is not reasonably probable that a result more favorable to
mother would have been reached. Over the objection of DCFS,
the court initially released the children to mother on the
condition that she comply with several safety conditions. Mother
failed to do so. Subsequently, mother failed to remain in contact
with DCFS, failed to drug test, and took only minimal steps
toward addressing her ongoing mental health issues. Any error
accordingly was harmless.
32
III. The court did not abuse its discretion by ordering monitored
visitation.
Mother’s final argument, which father does not join, is that
the juvenile court abused its discretion by ordering monitored
visitation for her. She contends monitoring “was not necessary to
protect the children,” because “[a]s of July 21, 2020 [the date of
the detention hearing] the court found the children could remain
in Mother’s care with certain safety conditions.”
A. Legal Framework
In ordering visitation, the juvenile court must balance the
“interests of the parent in visitation with the best interests of the
child” and “impose any other conditions or requirements to
further define the right to visitation in light of the particular
circumstances of the case before it.” (In re Jennifer G. (1990) 221
Cal.App.3d 752, 757.) We review orders prescribing visitation
terms for abuse of discretion. (In re Brittany C. (2011) 191
Cal.App.4th 1343, 1356.) “We will not disturb the order unless
the trial court made an arbitrary, capricious, or patently absurd
determination.” (Ibid.)
B. Analysis
The court ordered monitored in-person visitation for all
four children, and unmonitored phone visits with D. and T. This
was not an abuse of discretion. Though the children were
initially placed with mother in July 2020, they were detained
from her in August 2020 due to her failure to adhere to the safety
conditions imposed by the court. Even after the children were
detained, there was no indication that mother’s compliance or her
underlying mental health issues improved. The court reasonably
could conclude that mother might experience mood swings,
aggression, or even an “explosion” with the children during visits,
33
and that a monitor accordingly would be in the children’s best
interests. Mother also told DCFS she “did not want in-person
visits” with P. and M. because she believed such visits would “be
too difficult for her.” Mother’s recognition that she would find the
visits “difficult” suggests that the risk to the children could be
heightened if mother was unable to control her emotions or
actions. Indeed, responders to the first 911 call found mother
unable to carry on a conversation or answer questions even when
she was trying to “pull herself together.”
DISPOSITION
The jurisdiction and disposition orders of the juvenile court
are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J
34