In re K.M. CA2/3 ( 2020 )

Filed 9/4/20 In re K.M. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
In re K.M. et al., Persons B302421
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF Super. Ct.
CHILDREN AND FAMILY Nos. 19LJJP00310A,
SERVICES, 19LJJP00310B)
Plaintiff and Respondent,
v.
TIFFANY M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Steven E. Ipson, Judge Pro Tempore. Affirmed.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
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This is the second appeal brought by T.M. (mother) in the
dependency of her two daughters (ages 10 and 7). Mother’s
earlier appeal challenged the orders taking jurisdiction over the
children and for formal rather than informal supervision by the
Department of Children and Family Services (DCFS). While the
first appeal was pending, the juvenile court sustained a
supplemental petition (Welf. & Inst. Code,1 § 387) and removed
the children from mother’s custody (§ 361, subd. (c)). This appeal
challenges these new orders. We affirm.
BACKGROUND
I. The family2
The family’s home was filthy, smelled foul, and was
infested with cockroaches falling from the walls and into the
children’s food as they ate. Mother, who suffered from multiple
sclerosis, and maternal grandmother who was obese, were both
bedridden, leaving the children unsupervised. Soon, mother
decided to educate the girls at home, further reducing their
supervision. Older daughter changed grandmother’s diaper at
least three times a day and regularly administered medication to
both women. A plastic tub full of those drugs sat at the foot of
1 All further statutory references are to the Welfare and
Institutions Code.
2 On the court’s own motion, we take judicial notice of the
record in case No. B299417, the earlier appeal in this case.
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grandmother’s bed next to her oxygen tanks so that older
daughter could reach them. Mother rejected the social worker’s
repeated instructions to keep medication out of the children’s
reach and to cease having a child administer drugs.
DCFS filed an original petition and a first amended
petition alleging that the home was filthy and mother had limited
ability to appropriately care for and supervise the girls, that older
daughter administered prescription medication daily to mother
and grandmother, and that mother had a history of substance
abuse in combination with her prescription medication, and
suffered a DUI conviction.
Mother testified at the jurisdiction hearing that three
nurses came to the apartment sporadically during the week. She
claimed that aunt and great aunt came daily to clean, and that
she hired a professional cleaning agency to clean twice a month.
Mother also testified that aunt and great aunt helped her out
daily with cooking and cleaning. In advance of the disposition
hearing, a social worker found the children’s room to be cleaner
and less cluttered than before but needed more work. Mother
explained that cleaning was ongoing.
The juvenile court sustained the count alleging older
daughter’s daily administration of prescription medication. The
court ordered the children to remain in mother’s custody and
ordered mother to participate in services. Mother appealed.
II. The supplemental petition
Shortly before mother filed her first appeal, DCFS
generated an emergency response on July 19, 2019. During an
unannounced visit to the family’s apartment, older daughter
declared that she felt unsafe at home because, a few days earlier,
mother threw a knife at her that struck the child’s foot where the
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social worker observed a two-centimeter cut. Additionally, older
daughter accused her sister of pouring poison on her toast and
stabbing her in the leg with a knife. The social worker saw three
linear cuts on older daughter’s leg. Younger daughter admitted
only that she and her sister were trying to stab each other.
Mother also threw a cell phone at younger daughter, hitting her
in the back. Mother and grandmother were the only adults in the
home but were bedridden and did nothing about the children’s
behavior. Mother denied throwing a knife at older daughter,
denied hitting younger daughter with the cell phone that she
admitted throwing, and minimized the poisoning incident by
pointing out that no one actually ate the poisoned toast.
An acquaintance of mother reported that the children were
unsupervised because mother was bedridden and relied on older
daughter to care for her, including assisting mother in the
bathroom. The children had not bathed in months and they
hoarded food, which attracted cockroaches. The girls fought
constantly and ignored mother because she could not get out of
bed. Younger daughter would wipe her feces with dirty clothing,
which she then threw back on the floor. The nurses, who mother
claimed came to the house, helped grandmother only.
In July 2019, the social workers found the apartment’s
condition to be “improving” in that the bathtub was clean and the
beds had clean linens. However, the caretaker who had been
helping clean the apartment and feed the children reported she
had stopped working for the family. DCFS concluded that the
children were no longer safe in mother’s care and were at high
risk of future harm. Mother agreed to a safety plan under which
aunt would take the girls temporarily.
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III. The detention
DCFS removed the girls from mother’s care and filed the
challenged supplemental petition. (§ 387.) It alleged that
mother’s medical condition and inability to care for herself
rendered her unable to care for and supervise the children
(count s-1), younger daughter stabbed her sister with a knife and
attempted to poison her sister (count s-2), mother endangered the
children by throwing a knife at older daughter (count s-3), and by
throwing a cell phone at younger daughter (count s-4).
At the detention hearing, mother challenged the removal of
younger daughter only, arguing that she should be returned to
mother so mother could make an appropriate plan for the child’s
safety by returning her to aunt. Acknowledging her medical
condition prevented her from being completely mobile, mother
explained that an upstairs neighbor came daily to help out with
chores. The juvenile court detained the girls from mother’s
custody and awarded mother monitored visits.
IV. Jurisdiction on the supplemental petition
For the jurisdiction report, older daughter stated she was
very happy living with aunt and attending school. She was glad
she was no longer responsible to care for mother and
grandmother. Older daughter minimized the severity of the
allegations about her sister’s knifing and poisoning incidents.
She stated that her sister did not try to harm her with a knife;
they were just playing. She claimed mother accidentally threw
the knife at her while she was cutting onions, and that mother
only “softly” threw the cell phone at younger daughter’s back.
Younger daughter felt safe and happy at aunt’s clean house
where she was learning to tidy up after herself. She had started
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school and had made a lot of friends. She denied trying to kill
her sister, explaining that the two were trying to cut each other.
She denied mother threw a knife at older daughter, explaining
that mother only “dropped the knife.” She confirmed, however,
that mother threw a cell phone, but it only “softly” hit her in the
back.
After the children’s removal, mother went into the hospital
for a month followed by two weeks in a rehabilitation center. She
was diagnosed with multiple sclerosis relapsing and remitting,
that gave her headaches and vision problems. She also fell often.
Aunt explained in September 2019 that mother had been
unable to care for herself, let alone the children. Mother had
been prescribed the wrong medication that made her symptoms
worse. Once the children were removed, mother obtained
medical care and new medication.
Mother’s attorney requested that DCFS evaluate a safety
plan for younger daughter. DCFS interviewed mother who stated
she intended to attend family counseling and have older daughter
go into individual therapy. She also planned to arrange family
outings and activities to help the girls feel comfortable with each
other and to understand what mother is suffering. She had two
in-home care providers, maternal aunt and Juanita C., to assist
her in supervising the children mornings and evenings. Mother
planned to enroll the children in an afterschool program so that
she would have time to prepare family meals. However, DCFS
recommended that mother participate in family reunification
services.
At the jurisdiction hearing in mid-November 2019, mother
testified that she was paralyzed at the time the children were
removed from her custody. Since then, during her two-month
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hospitalization, she was prescribed new medication to prevent
relapses. Mother acknowledged that her multiple sclerosis could
relapse while the children were in her care, but she had been
guaranteed that if she stayed on her new medication, relapses
would last no longer than four days. Aunt or great aunt would
care for the girls if mother had to return to the hospital. Unlike
earlier, mother was no longer bedridden and could cook and
clean. Still, a caregiver comes daily to help with those chores, to
bring mother her medication, and to help run errands. The
caregivers would also help take care of the children. Mother
claimed to have kept her home clean since the case began. She
also removed the knives from the apartment, although she denied
throwing anything at older daughter and said she threw the cell
phone onto the floor, not at younger daughter.
The court found that the previous disposition had not been
effective and sustained counts s-1 and s-2. It next found that a
substantial danger to the children existed if they were returned
to mother and there were no reasonable means to protect them
without removal. DCFS had made reasonable efforts to provide
services. The court awarded mother monitored visitation.
DISCUSSION
I. Applicable law
“A section 387 supplemental petition, like the ones filed
here, is used to change the placement of a dependent child from
the physical custody of a parent to a more restrictive level of
court-ordered care. (§ 387; [citation].)” (In re D.D. (2019)
32 Cal. App. 5th 985, 989.) “In the jurisdictional phase of a
section 387 proceeding, the court determines whether the factual
allegations of the supplemental petition are true and whether the
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previous disposition has been ineffective in protecting the
child[ren]. [Citations.] If the court finds the allegations are true,
it conducts a dispositional hearing to determine whether
removing custody is appropriate. [Citations.] A section 387
petition need not allege any new jurisdictional facts, or urge
different or additional grounds for dependency because a basis for
juvenile court jurisdiction already exists. [Citations.] The only
fact necessary to modify a previous placement is that the
previous disposition has not been effective in protecting the
child[ren].” (In re T.W. (2013) 214 Cal. App. 4th 1154, 1161.)
“A removal order is proper if it is based on proof
of (1) parental inability to provide proper care for the minor[s]
and (2) potential detriment to the minor[s] if [they] remain[ ]
with the parent.” (In re T.W., supra, 214 Cal.App.4th at p. 1163.)
We “review the court’s jurisdictional and dispositional
findings for substantial evidence. [Citations.] . . . [W]e draw all
reasonable inferences in support of the findings, view the record
in favor of the juvenile court’s order and affirm the order even if
other evidence supports a contrary finding. [Citations.] The
appellant has the burden of showing there is no evidence of a
sufficiently substantial nature to support the findings or order.”
(In re T.W., supra, 214 Cal.App.4th at pp. 1161–1162.)
II. The juvenile court did not err in sustaining the
supplemental petition and removing the children.
The evidence supports the juvenile court’s finding that the
factual allegations of the supplemental petition were true and
that the previous disposition was ineffective in protecting the
children. Under the original arrangement, the girls could remain
in the home with DCFS supervision. However, it became clear to
DCFS that the home was chaotic, and the children were not safe.
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The girls were trying to cut each other with knives, and one tried
to poison the other. They did not respond to mother’s attempts at
supervision. Thus, apparently out of frustration, mother threw a
cell phone at a child.
Mother contends that the family’s circumstances did not
warrant the drastic intervention of removal because she had
responded to the social workers’ concerns. She was hospitalized
and her medication was adjusted so that she was stronger, more
alert, and no longer bedridden. She and her caregivers were
addressing the cleanliness and infestation problems, and great
aunt would help mother cook and clean. Mother cannot be heard
to challenge removal of older daughter because she effectively
agreed to it by arguing against detention of younger daughter
only.
Mother is commended for addressing her medical issues by
seeking medical help. But she claimed she was addressing the
filth and the lack of supervision for the children at the time the
original petition was adjudicated, and failed to follow through.
Mother stated that aunt and great aunt helped her out daily with
cooking and cleaning, and that three nurses came sporadically
during the week. Yet, after the disposition hearing on the
original and first amended petitions, older daughter disclosed
that mother and maternal grandmother were the only adults in
the apartment, and they were both bedridden. Aunt stated she
only occasionally helped out. Meanwhile, the unsupervised
children were attacking each other with knives and poison.
Mother claims that removal was unnecessary also because
she devised a safety plan under which aunt would care for the
girls. Mother intended to pursue services and counseling for
older daughter, and planned to put the girls in afterschool
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program. With respect to placing the girls with aunt, the record
shows that she agreed to it after DCFS placed them with aunt.
As for the safety plan, DCFS did not devise it. Rather, at
mother’s request, the agency interviewed her about her proposal.
Nothing in the record suggests that DCFS thereafter approved
mother’s proposed safety plan. Rather, DCFS had already
determined, and the juvenile court agreed, that the children were
not safe in mother’s custody as mother was unable to provide
proper care for them and they were at high risk of harming or
killing each other. (See In re T.W., supra, 214 Cal.App.4th at
p. 1163.)
Mother blames DCFS for failing to provide her with
reasonable services as originally ordered. However, the record
shows that DCFS provided mother with referrals to programs
and regularly visited the family. DCFS told the juvenile court
that it provided referrals as soon as the court signed the
disposition order. However, the children were detained within a
month of the disposition order, before the programs began. This
is not a failure to provide services.
Finally, mother’s contention is wrong that DCFS
improperly shifted the burden to her to independently verify that
she was in remission and what her new abilities were. The
burden was always on DCFS to prove the factual elements of
section 387 by substantial evidence. (See In re A.O. (2010)
185 Cal. App. 4th 103, 109–110.) As explained, DCFS carried its
burden. To counter the showing made by DCFS, mother testified
she was in remission and able to cook, clean, and care for the
children. However, the juvenile court disbelieved her, stating it
believed instead that mother continued “to have limited ability,”
and otherwise noted mother’s failure to provide evidence of her
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remission and of her abilities. It is the responsibility of the
juvenile court to pass on the credibility of witnesses (In re T.W.,
supra, 214 Cal.App.4th at p. 1161), and in view of the number of
false stories mother gave throughout this case about who was
helping her clean the house and care for the children, the court
reasonably concluded mother was not entirely forthcoming about
her abilities at the time of the disposition hearing on the
supplemental petition. DCFS’s argument on appeal that there
was no “independent verification” is an accurate statement of the
record. But, the burden was never improperly shifted to mother.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
LAVIN, J.
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