In re S.S. CA4/3 ( 2021 )

Filed 12/29/21 In re S.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re S.S., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G060507
Plaintiff and Respondent,
(Super. Ct. No. 20DP0904)
v.
OPINION
M.S,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Mary
Kreber Varipapa, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leon J. Page, County Counsel, and Karen L. Christensen and Jeannie Su,
Deputy County Counsel, for Plaintiff and Respondent.
Defendant M.S. (mother) appeals from the juvenile court’s order removing
her child, S.S., from her custody. Mother points to her acknowledged sobriety, stability,
and compliance with the court’s order and case plan. However, substantial evidence
supports the court’s finding that S.S. was at substantial risk of harm in mother’s custody
because of her relationship with C.S. (father), who has unresolved substance abuse issues.
Further, the court did not abuse its discretion in approving the Social Services Agency’s
(the agency) case plan, despite mother’s progress. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
S.S. was born to mother in July 2020. Mother and S.S. both tested positive
for amphetamines while in the hospital, and mother admitted using methamphetamine.
Mother lived with father, in an environment mother admitted involved “excessive
substance abuse.” Mother had a previous child with another man, C.S., to whom she was
still married. C.S. has sole custody of that child as a result of a prior dependency case in
Riverside County, which arose from mother’s methamphetamine abuse.
The agency sought and received a protective custody warrant within days of
S.S.’s birth. S.S. was placed with his maternal aunt. In the months that followed, the
agency interviewed mother and father. Mother stated she wanted to share custody of S.S.
with father, whom she called her fiancé. Mother indicated she had gotten sober and
would stay sober and abide by the court’s orders.
Mother consistently tested negative, visited S.S. regularly, and participated
in therapy and, for a time, a Narcotics Anonymous program. However, father’s presence
at the visits with S.S. often interfered with the visits, as mother and father frequently
argued, and the caregiver believed father sometimes attended visits while under the
influence. Father also failed to participate in drug testing.
In May of 2021, mother was permitted to engage in unsupervised visits
with S.S., outside the presence of father. At around the same time, mother began
inquiring about filing a restraining order against father, and indicated to the social
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workers assigned to the case that she no longer had contact with him. The caregiver,
however, reported that she believed mother was allowing unauthorized contact between
father and S.S. during the unsupervised visits, citing the fact that father’s van was parked
near mother’s home. Mother reported that father did not reside with her, and had lost the
keys to his van, which his relatives would be moving soon.
After another unsupervised visit, the caregiver reported she saw father in
front of mother’s residence, and that father recognized her and tried to hide. The
caregiver also alleged father’s van was still present. When the social workers made an
unannounced visit to mother’s home to investigate, the home was empty. The social
workers called mother and asked about the caregiver’s allegations. Mother told the social
workers she did not know father was there, and that the allegations were untrue and
motivated by the caregiver’s desire to interfere with her reunification with S.S. The
social workers also asked for contact information for mother’s roommates to verify her
statements, but mother declined, stating she wanted their privacy respected. Mother
further told the social workers she did not want father in S.S.’s life and did not want to
share custody until she saw a change in his behavior.
At the June 25, 2021 dispositional hearing, one of the social workers
testified an emergency protective order had been obtained by father against mother,
arising from an incident on May 25, 2021. The order indicated that mother and father
were at father’s residence, and mother slapped father three to four times. It also indicated
that mother and father were in a dating relationship. The social worker testified this was
cause for concern because the facts in the order contradicted mother’s statements to the
agency about distancing herself from father.
The agency took the position that custody should not be given back to
mother because of her relationship with father, who appeared to be continuing to use
drugs. Counsel for father and mother argued the agency had not met its burden of
showing by clear and convincing evidence that S.S. should be removed, and sought
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placement with mother. The court concluded the recency of the father’s contacts with
mother supported a finding that vesting custody of S.S. with mother would be detrimental
to S.S. The court approved the agency’s case plan (which called for reunification
services to be provided to mother), and set review hearings for September and December.
Mother timely appealed.
DISCUSSION
Mother argues the juvenile court erred by removing S.S. from her custody.
We review the juvenile court’s dispositional findings for substantial evidence. (In re
Ma.V. (2021) 64 Cal.App.5th 11, 22.) The relevant standard is provided by Welfare and
Institutions Code section 361, subdivision (c)(1): “A dependent child shall not be taken
from the physical custody of his or her parents . . . unless the juvenile court finds clear
and convincing evidence of any of the following circumstances . . . [¶] (1) There is or
would be a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s . . . physical custody.”
As a preliminary matter, we are mindful of our published observation of “a
recent, and troubling trend, of what we perceive as mothers being punished as victims of
domestic violence,” in the Orange County juvenile courts. (In re Ma.V., supra,
64 Cal.App.5th at p. 25.) In fact, at the dispositional hearing, which took place shortly
after our publication of In re Ma.V., counsel in this case made that very argument to the
juvenile court.
However, the facts of this case do not fit into that paradigm. Here, at least
as far as the May 25, 2021 incident is concerned, mother appears to have been the
aggressor and not the victim. More importantly, the incident demonstrates mother had
not, in fact, distanced herself from father as late as one month before the dispositional
hearing. It also lends credibility to the caregiver’s allegations that father remained
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involved in mother’s life, even after the incident. These facts contrast sharply with those
of In re Ma.V., in which it was undisputed the mother had ended her relationship with the
abuser and had no contact with him for 10 months prior to the dispositional hearing. (In
re Ma.V., supra, 64 Cal.App.5th at p. 22.) The caregiver’s allegations, along with the
domestic violence incident, constitute substantial evidence to support the juvenile court’s
finding by clear and convincing evidence of a continuing danger to the child created by
mother’s relationship with father.
Mother contends the juvenile court could have assuaged its concerns
regarding father’s presence by issuing an order protecting mother and S.S. from father.
Such an order, mother argues, would have been a “reasonable means by which [S.S.’s]
physical health [could] be protected without removing [S.S.] from [mother’s] . . . physical
custody,” as described in Welfare and Institution Code section 361, subdivision (c)(1).
However, substantial evidence supports the court’s contrary conclusion. The danger to
S.S.’s well-being arose from a continued consensual relationship between father and
mother, in the course of which mother would allow father unauthorized visitation with
S.S., despite father’s ongoing drug issues. A restraining order would also do nothing to
protect S.S. from father if mother allowed father to visit and a fight broke out.
Mother also argues the juvenile court erred by failing to take into account
mother’s progress when approving the agency’s case plan. Mother points to her
participation in therapy, Narcotics Anonymous, and drug testing, her completion of a
parenting class, and the social worker’s testimony that he was no longer concerned with
her sobriety or mental health. Mother complains that the agency’s case plan required her
to take many of these steps, and the court’s order approving the case plan does not reflect
her completion of those steps, potentially requiring her to complete them again. The
agency argues the issue was forfeited by mother’s failure to object to specific
components of the case plan in the court, but also concedes that the inclusion of certain
items in the case plan “would not necessarily require Mother to redo elements she had
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completed if she remain[s] sober and mentally stable, e.g., another substance abuse
treatment program.”
We construe the juvenile court’s approval of the case plan consistently with
the agency’s concession. We note the case plan itself, which was prepared in August
2020, sets projected completion dates for various requirements at dates long before the
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time the court approved the plan. We do not interpret it as requiring mother to restart
drug testing, newly reengage with Narcotics Anonymous, complete a second parenting
class, or complete another drug treatment program. Nor, for that matter, do we interpret
the court’s approval of the case plan as returning mother to the low level of supervised
visitation authorized by the case plan, given the court’s specific orders issued in the
interim allowing more liberal visitation. Instead, we conclude the court’s order
approving the case plan simply formalized the existing status quo.
DISPOSITION
The juvenile court’s order is affirmed.
ZELON, J.*
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, 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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For example, the case plan suggests mother should complete her parenting class by
January 25, 2021, even though the case plan was not approved by the court until June.
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