In re A.D. CA2/3 ( 2021 )

Filed 12/13/21 In re A.D. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re A.D. et al., Persons Coming B309523
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. 20CCJP03820A,
20CCJP03820B)
Plaintiff and Appellant,
v.
M.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Pete R. Navarro, Judge Pro Tempore. Affirmed.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Appellant Department of
Children and Family Services.
Linda B. Puertas, under appointment by the Court of
Appeal, for Defendant and Appellant M.D.
William Hook, under appointment by the Court of Appeal,
for Respondent H.D.
Marissa Coffey, under appointment by the Court of Appeal,
for Respondent Minor A.D.
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In the dependency of A.D. and N.F., the juvenile court
issued a disposition order removing the children from the custody
of M.D. (mother) and placing them with A.D.’s paternal
grandparents. (Welf. & Inst. Code,1 § 361, subd. (c)(1).) Mother
appeals, challenging the removal order for lack of substantial
supporting evidence. The Department of Children and Family
Services (DCFS) defends the removal order but challenges the
placement order because H.D. (father) lives with the
grandparents and is only allowed monitored contact with the
child. A.D. agrees with father and DCFS that the removal order
should be affirmed and, along with mother, supports the
placement order. We find no abuse of juvenile court discretion
and affirm the disposition order in its entirety.
BACKGROUND
I. The petition
N.F. (age 3) is A.D.’s (age 9) half sister from a different
father. A.D. was previously a dependent of the juvenile court
because of father’s alcohol abuse and because father was arrested
for driving on a suspended license while under the influence, with
1 All further statutory references are to the Welfare and
Institutions Code.
2
A.D. unrestrained in the car, and then left A.D. alone in the car
with the motor running for an extended period of time (case No.
DK03987). When the juvenile court terminated the prior
dependency, it granted mother sole physical custody of, and
ordered that father have monitored visitation with, A.D.
In June 2020, DCFS received a referral of general neglect.
An employee of the hotel where mother and the children were
living found N.F. alone in the stairwell calling for mother. The
door to the family’s room was ajar and A.D. was asleep. Mother
and N.F.’s father, F.F., were in another room at the hotel. The
hotel employee called the police.
Mother told DCFS she had no permanent address. She
would allow A.D. to stay with his paternal grandfather where
father also lived, despite the order limiting father to monitored
visitation. Mother reasoned that A.D. wanted to stay with
paternal grandfather where he was not left alone with father.
A.D. stated he enjoys being with mother. They used to
spend more time together but now mother “ ‘goes in the bathroom
to do work.’ ” A.D. reported he has a good relationship with
father. When at grandfather’s house, A.D. plays with friends who
live a few houses away, listens to music with father, watches
television with his grandparents, and watches YouTube. A.D.
stated that father drinks beer sometimes but does not act
differently when he drinks. The child felt safe there. N.F. was
unable to provide a statement.
Paternal grandfather clarified that the grandparents have
cared for A.D. for the majority of the child’s life. A.D. primarily
stays with paternal grandparents during the school year because
school is nearby. When school is out, A.D. goes back and forth
between mother and paternal grandparents, which schedule
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makes the child feel insecure. The grandparents want A.D. to be
safe and are always attentive to his needs.
Father had all of the symptoms of being under the
influence of alcohol when he met the social worker. He explained
he had just gotten off work and had some beer. Father described
mother as very aggressive and abusive. Along with father,
paternal aunt lives in paternal grandparents’ house. A.D. sleeps
in the grandparents’ room; not with father.
Mother’s friend explained that paternal grandparents, not
father, are responsible for caring for A.D. The child asked
mother if he could remain with paternal grandparents over the
summer because he enjoyed playing with his cousins. The friend
had no concerns about A.D.’s safety in paternal grandparents’
house.
DCFS filed a petition naming mother and father, and
alleging serious physical harm and failure to protect. (§ 300,
subds. (a) & (b)(1).) The juvenile court detained A.D. from father,
placed him in the supervision of DCFS, and released both
children to mother.
II. The jurisdiction order
The social workers had difficulty interviewing mother for
the jurisdiction and disposition report. The family was not at the
address where they purportedly lived. Between late August and
mid-September 2020, mother made herself unavailable to DCFS
and prevented the social worker from having access to the
children. She postponed meetings and drug tests, and either did
not respond to calls and texts, or agreed to allow the social
worker to interview the children while avoiding scheduling a day
and time.
4
Law enforcement notified DCFS in August 2020 that
mother and F.F. created a disturbance at a motel. A.D. ran to the
lobby asking for help because a man was hitting mother. Mother
claimed F.F. pulled her hair. Law enforcement was called to a
different hotel in September 2020 where A.D. reported that F.F.
assaulted mother by slamming her into a bathtub. The police
filed a report of suspected child abuse. Mother denied to the
investigating social worker that she left the children
unsupervised or that she had an open dependency case. Mother
gave an explanation for the bathtub incident that did not
implicate F.F. While mother was relating her story to DCFS,
F.F. called her. The social worker overheard F.F. ordering
mother not to tell DCFS what happened. After that, mother
denied that anything occurred. Mother relies on F.F. for financial
support.
Mother did not allow the social worker to interview A.D.
alone. Nonetheless, A.D. told the social worker that he did not
like the way F.F. treats mother, claiming F.F. was mean to her
and scared him sometimes. A.D. described the bathtub
incident: Mother was in a fetal position in the bathtub yelling
for help as F.F. tried to get keys from her. Hearing mother
yelling, A.D. ran into the bathroom to pull F.F. off mother. He
then ran to the front desk crying that F.F. was beating his
mother up. N.F. was watching cartoons at the time. A.D.
recalled another incident a month earlier while N.F. was taking a
bath. F.F. slapped mother and told A.D. to leave the bathroom.
Mother then interrupted the interview to ask A.D. about that
event, at which point A.D. became emotional and ran out of the
room. Mother then claimed she remembered the earlier incident
and gave another innocent, alternative explanation.
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At the jurisdiction hearing, the juvenile court sustained
counts b-1 and b-6 in the amended petition finding true that: in
June 2020, mother failed to provide appropriate care and
supervision because N.F. was found wandering in the stairway
and A.D. was asleep in a motel room without adult supervision;
and mother and F.F. have a history of engaging in violent
altercations, which A.D. witnessed. (§ 300, subd. (b)(1).) The
court dismissed the petition’s counts naming father and so he is
nonoffending. The court ordered the children to remain released
to mother under the supervision of DCFS.
III. The disposition order
Finding it had insufficient information to hold the
disposition hearing, the juvenile court continued it to allow DCFS
to reassess placement with mother and to evaluate paternal
grandparents for placement there under a home-of-father order.
The court also allowed father to have monitored visits in paternal
grandparents’ home. Mother indicated she was staying in a hotel
in Hollywood and so the court ordered DCFS to provide hotel
vouchers to mother.
DCFS’s ensuing report reflected that mother was moving
out of her hotel but had provided no information about where she
was going. She agreed to allow the social worker to interview the
children but did not respond to numerous text requests to share
their location. Finally, A.D. told the emergency social worker the
name of their hotel.
Father told DCFS that A.D. was staying with paternal
grandparents. Mother was two days late to pick the child up.
Father described why he believed mother was using
methamphetamines.
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Step-maternal grandmother was unable to reach mother.
That grandmother knew mother abused substances when mother
was with father.
DCFS recommended that the juvenile court remove the
children from mother’s care. Mother had not made contact in a
week and DCFS was concerned about domestic violence, possible
substance abuse, and lack of protection for the children. A.D. had
witnessed at least two incidents of domestic violence and N.F. is
very young and needs the care of a sober and available parent.
DCFS was unable to provide hotel vouchers to clients and
referred mother to social services but they only offered vouchers
for two weeks. Mother rejected DCFS’s referrals to shelters.
Paternal grandfather was willing to care for both children
and to be considered as a placement for them, even if that meant
father would be required to move out. A.D. was never left alone
with father; paternal grandparents stayed with A.D. whenever he
spent time with father. DCFS found paternal grandparents’
home to be cluttered and recommended that it be cleaned up for
N.F., who is a toddler.
Father was willing to move out of the home to enable
paternal grandparents to care for both the children. Father had
not completed any of the programs the juvenile court ordered
during A.D.’s previous dependency and so DCFS continued to be
concerned about father’s unresolved alcohol abuse. Paternal
grandfather also viewed father’s drinking as a problem.
At the disposition hearing, the juvenile court found that
“circumstances are such that there is an incredible amount of
disorganization to mother’s life. It’s hard to determine from one
date to the next where she’ll be with these children.” The court
ordered both children removed from mother’s custody—noting
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A.D. had already been removed from father—ordered N.F.
removed from her father, and placed both children in the home of
paternal grandparents. The court did not require father to move
out of the home but ordered that he not be alone with the
children. The court also ordered family reunification services for
both mother and father. Mother, DCFS, and father appealed.2
We appointed counsel for the children.
DISCUSSION
I. No abuse of discretion in removing the children from
mother’s custody.
When a child has been adjudged a dependent of the
juvenile court under section 300, the juvenile court conducts a
disposition hearing at which it decides, among other things,
whether the child will remain in the parent’s physical custody
during the period of the court’s supervision. (§ 361, subd. (a); In
re N.M. (2011) 197 Cal.App.4th 159, 169.) Subdivision (c)(1) of
section 361 authorizes the court to remove a dependent child
from the physical custody of the parent with whom the child
resides if it finds by clear and convincing evidence that there is or
would be a substantial danger to the child’s physical or emotional
well-being if not removed, and there are no reasonable means to
protect the child without removal.
In deciding whether to remove a child from parental
custody, “ ‘[t]he [juvenile] court may consider a parent’s past
conduct as well as present circumstances.’ ” (In re John M. (2012)
212 Cal.App.4th 1117, 1126.) The parent need not be dangerous,
2 Father’s appeal was dismissed but he filed a respondent’s
brief in this appeal.
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and the child need not have been actually harmed before removal
is appropriate. “ ‘The focus of the statute is on averting harm to
the child.’ ” (In re N.M., supra, 197 Cal.App.4th at p. 170.)
“ ‘The juvenile court has broad discretion to determine
what would best serve and protect the child’s interests and to
fashion a dispositional order accordingly. On appeal, this
determination cannot be reversed absent a clear abuse of
discretion.’ ” (In re D.P. (2020) 44 Cal.App.5th 1058, 1071.) We
review the disposition order, including a disposition order
removing a child from a parent’s physical custody, for an abuse of
discretion (In re K.T. (2020) 49 Cal.App.5th 20, 25), and we
review for substantial evidence the findings of fact on which the
removal order is based (ibid.). When reviewing a finding that
requires proof by clear and convincing evidence, such as here, we
consider “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.)
Mother contends that the only reason the juvenile court
removed the children from her custody was her poverty and
homelessness. She argues that “the biggest risk to this mother
and her children was her inability to find and afford stable
housing.” Not so.
Housing and poverty were nowhere alleged in the petition.
Had mother’s homelessness been the driving concern, the
juvenile court would have removed the children from her custody
at the outset. Instead, when it detained A.D. and N.F. and then
when it first sustained the petition, the court did not remove the
children from mother’s custody, despite the fact that the family
lived in hotels. Instead, the court ordered DCFS to investigate
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whether to remove the children and to provide the court with
more information on which to make its decision. When mother
complained at the disposition hearing that removal was
penalizing her based on her poverty and unstable housing, the
court responded, “it’s more than that.”
Looking at the whole record (In re Rodger H. (1991)
228 Cal.App.3d 1174, 1183 [juvenile court may consider the
circumstances of the child and family, including matters not
pleaded in petition]), it shows that these children are at
substantial risk of harm because mother leaves them alone
unsupervised, and repeatedly exposes them to domestic violence.
At least once, A.D. could have been hurt when he tried to
intervene to protect mother from F.F.’s aggression. Such
negligence could occur regardless of whether a family is
homeless. Moreover, mother made it difficult for DCFS to
supervise the children and assure their safety, not because she
moved frequently, but because she refused to keep the social
worker apprised of her whereabouts or to allow DCFS access to
the children. The court’s principal concern is a disposition
consistent with the best interests of the children. (Ibid.) Any
reasonable fact finder would have found it highly probable that
these children were at substantial risk of serious harm if left in
mother’s dangerous and neglectful custody, irrespective of
mother’s poverty and homelessness. The juvenile court did not
abuse its discretion in removing the children from mother’s
custody.
II. No abuse of discretion in placing the children with paternal
grandparents.
DCFS contends that the placement order was an abuse of
discretion because there is no evidence that father attempted to
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resolve his alcohol-related issues that led to his loss of physical
custody, and so father’s presence in paternal grandparents’ home
poses a risk to the children.
The juvenile court has wide discretion in issuing placement
orders and its determination will not be disturbed absent a
manifest showing of abuse of that discretion. (In re Sabrina H.
(2007) 149 Cal.App.4th 1403, 1420–1421.) The test for abuse
of discretion is whether the juvenile court exceeded the bounds of
reason by making an arbitrary, capricious, or patently absurd
determination. (Ibid.) We will interfere only if no judge could
reasonably have made the same order. (Ibid.)
Section 361.3, subdivision (a) gives “preferential
consideration” to a “request by a relative of the child for
placement of the child with the relative.” (Italics added.) In
assessing whether to place a child with a relative, section 361.3,
subdivision (a) directs the juvenile court to consider, among other
things, the parent’s wishes; a sibling’s placement; the good moral
character of the relative and any other adult living in the home,
including whether any individual residing in the home has a
prior history of child abuse or neglect; the nature and duration of
the child’s relationship with the relative; the relative’s desire to
care for, and to provide legal permanency for, the child; and the
relative’s ability to provide a safe, secure, and stable
environment, exercise proper and effective care and control of the
child, and to protect the child from his or her parents. This
preferential consideration is not a guarantee of relative
placement. The best interest of the child remains the linchpin of
the court’s analysis. (In re Robert L. (1993) 21 Cal.App.4th 1057,
1068.)
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Here, the evidence shows that all of the adults in the family
want the children to live with paternal grandparents. A.D. has a
good relationship with paternal grandparents, as he has lived
there the majority of his life, trouble-free. Under this
arrangement, A.D. and N.F. can be placed together. The record
reflects no problem with paternal grandparents’ character.
Admittedly father lives in the home and there is no evidence he
has addressed the causes of A.D.’s prior dependency. However,
paternal grandfather was clear, and mother and her friend
confirmed, that A.D. is never left alone with father and
presumably N.F. will not be left alone with father either.
Paternal grandparents did not work which enabled them to
remain vigilant about protecting the children from father. The
friend expressed no concerns about A.D.’s safety with paternal
grandfather, who provided appropriate care, and never allowed
unsupervised contact between father and child. Furthermore,
unlike with mother, A.D. feels safe and likes living with paternal
grandparents where he has food to eat, sleeps in his own bed in
grandparents’ room, has friends, and attends school. He had
already asked mother if he could remain there during the
summer. The grandparents were concerned only with the
children’s best interest, including school, stability, medical care,
and assured that A.D. always had food. Finally, father was
amenable to moving out of the grandparents’ home. DCFS has
supervisory authority and can always seek a juvenile court order
that father move out should the necessity arise. Based on this
record, therefore, we cannot say that the court abused its
discretion in fashioning the placement order it did.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
WINDHAM, J.*
We concur:
EDMON, P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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