In re M.W. CA3 ( 2020 )

Filed 11/17/20 In re M.W. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re M.W. et al., Persons Coming Under the Juvenile C089646
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. Nos. JD239499,
CHILD, FAMILY AND ADULT SERVICES, JD239500)
Plaintiff and Respondent,
v.
M.W.,
Defendant and Appellant.
In this appeal, Mo.W. (father) challenges the jurisdictional and dispositional
orders of the juvenile dependency court related to his children, Mi.W. (age 10) and A.W.
(age 12) (collectively the minors). Father contends (1) there is insufficient evidence to
support jurisdiction over the minors, (2) there is insufficient evidence of current risk to
support the minors’ removal from the paternal grandparents, (3) the domestic violence
services ordered in father’s case plan are not supported by substantial evidence, and
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(4) the juvenile court abused its discretion in ordering that his visits be supervised by
someone other than the paternal grandparents. We will affirm the judgment.
BACKGROUND
On November 30, 2018, the Sacramento County Department of Child, Family, and
Adult Services (Department) filed verified Welfare and Institutions Code section 3001
petitions on behalf of the minors alleging risks to the minors under subdivisions (b)(1)
and (c).
The petitions alleged the minors’ mother and her boyfriend had a history of
domestic violence and had engaged in domestic violence in front of her children,
including the minors. Mother and her boyfriend agreed to voluntary informal services,
but then refused to participate in those services and violated five separate safety plans.
Mother’s untreated psychiatric and/or emotional problems, combined with her
intellectual disabilities, had impaired her judgment and ability to provide care, protection,
and supervision to the minors. Mother suffered from depression, bipolar disorder, and
anxiety, but failed to follow up with counseling and medication. She also had a
borderline intellectual delay for which she received services until the services were
terminated for nonattendance.
The petitions further alleged mother had failed to provide for the minors’ medical,
dental, mental health, and developmental needs. It was not known when the minors had
last seen a dentist. A.W. needed a new nebulizer and to a see a doctor for her right ear.
The minors’ referrals for mental health treatment were allowed to lapse. Mother failed to
fill Mi.W.’s psychotropic medication despite repeated reminders. She also failed to
reestablish services for the minors, who have developmental and speech delays.
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
According to the petition, father’s untreated psychiatric disorder, emotional issues,
and substance abuse problems impaired his judgment and ability to provide care,
supervision, and protection for minors. Father suffered from untreated bipolar disorder
and also abused alcohol, opiates, and methamphetamine. He repeatedly refused to drug
test. Mi.W. twice complained father physically abused him with a bat and a shoe.
In addition, the petitions alleged Mi.W. was suffering or had suffered emotional
damage as evidenced by suicidal ideation and self-harming behaviors. Mi.W. was held
on section 5150 holds on October 10, 2018 and November 6, 2018 for holding a knife
to his neck and threatening to stab himself, as well as for cutting his arm with scissors.
Mi.W. had expressed suicidal ideation and suffered escalating aggressive behaviors.
He complained that he feared physical abuse by father. Despite recommendations for
counseling, mother failed to obtain those services or Mi.W.’s prescription for Risperdal.
An associated November 30, 2018 application for a protective custody warrant
provided more information regarding the circumstances and living arrangements relevant
to father’s contentions on appeal. Mi.W. reported witnessing his mother fighting with her
boyfriend five times, while A.W. denied witnessing any such fighting. Father transported
the minors to stay with their mother on weekends, and the minors lived with their father
and paternal grandparents during the week. At the end of September 2018 and again in
early October, Mi.W. complained he was afraid of his father, who he said called him
names, had slapped him, pulled his pants down and hit him with a shoe. According to
Mi.W., on another occasion father hit him in the face with a shoe. Mi.W. also
complained father had hit him in the knee with a bat. The later filed
jurisdiction/disposition report indicated that a mandated reporter observed two bruises on
Mi.W.’s knee. A.W. denied that father hit Mi.W. or called him names, and the paternal
grandparents denied that father hurt Mi.W., that Mi.W. was scared of father, or that father
abused drugs.
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The day after Mi.W.’s October 10, 2018 threat to stab himself with a knife, he
threatened to kill himself again while at school. The school called father to inform him
of Mi.W.’s statements and father said he would put Mi.W.’s school in a “flash” if Mi.W.
was not there when father arrived. As a result of father’s statement, the school went on
lockdown and father was banned from bringing the minors to the campus. On October
31, 2018, during a social worker visit, Mi.W. threatened to harm himself but police were
able to calm him. Mother was referred to Sacramento County Mental Health. She agreed
to place the minors with their paternal grandparents and the grandparents agreed to
supervise the minors with father. Father refused Department services.
On November 6, 2018, Mi.W. cut his wrist with scissors at school and was
transported to a hospital. Attempts to contact mother and father were unsuccessful. The
school worried A.W. was also acting out behaviorally and that the paternal grandparents
were not interested in learning why Mi.W. feared father. Mi.W. was released from the
hospital on November 8 with a psychiatric prescription and referral for outpatient
treatment.
During the November 13, 2018 preventive child family team meeting, a picture of
Mi.W. with a black eye allegedly inflicted by father was disclosed. At a follow-up
interview, father admitted past domestic violence with mother, but explained he always
apologized afterwards. Mi.W. told mother that father caused the black eye, which
occurred a few months before. Father had previously punched mother in the face. When
asked about their failure to follow-up on Mi.W.’s latest section 5150 hold, mother did not
reply and father blamed his parents for not following up. Father admitted to drinking
heavily in recent days but then retracted his statement. When asked what a drug test
would show, father admitted it would show alcohol and opiates, but then refused to test.
The social worker observed that father’s physical appearance was consistent with use of
methamphetamine or something stronger. When the social worker mentioned this to
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mother while father was in the restroom, mother confided that father was using
methamphetamine.
On November 21, 2018, a social worker visited the paternal grandparents’ home.
The grandparents reported they were caring for the minors 100 percent of the time, but
their abilities were hampered by the parents’ lack of communication and follow-up with
the minor’s various needs. The grandparents turned away professionals for an
assessment earlier in the week because no one had communicated the visit to them, and
they had other plans. The grandparents were unaware of father’s drug use, but were
concerned about his untreated mental health issues. They reported that father did not
listen to them or follow their advice.
The juvenile court granted the request for emergency detention of the minors after
finding that their physical environment posed an imminent threat to their health or safety
and there were not reasonable means by which the minors could be protected without
temporary removal from the physical custody of the parents or guardians. The minors
were subsequently detained over father’s objection on December 12, 2018. Following
an altercation in the visitation parking lot between father and mother’s boyfriend, each
parent was ordered to visit separately.
The January 8, 2019 combined jurisdiction/disposition report summarized the
originating circumstances leading to formal Department intervention, as previously
recounted here. Notably, father agreed with the harm statement vis-à-vis mother,
indicating he was aware that mother and her boyfriend had a history of domestic
violence, including the boyfriend pulling a knife on her and slapping her in the face.
The violence had occurred in front of father and the minors, yet father failed to explain
why he continued taking the minors to their mother on weekends. Father disagreed he
was a danger because of mental health or substance abuse issues and refused to answer
questions concerning his mental health because he did not want to incriminate himself.
Father refused to test to verify he was drug free. He admitted Mi.W. reported physical
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abuse but denied he had hurt him. Father indicated he was willing to take parenting and
domestic violence classes, but then refused to accept the paper referrals for services and
left without providing a family background.
Mother blamed father and paternal grandparents for any lack of medical or dental
care related to the minors. She admitted using methamphetamine for the first time two
weeks before being interviewed for the report. She had positive tests for
methamphetamine on December 10 and 13. Mi.W. reported he had seen mother’s
boyfriend hit her on the face, but otherwise refused to be interviewed. Mi.W. continued
to make statements threatening self-harm at his placement. A.W. denied witnessing any
domestic violence or physical abuse, but she had disclosed to her caregiver that she
witnessed a fight between father and mother’s boyfriend where both were bleeding and
mother was hit by accident. A.W. had not been to school in a long time and did not know
why. She said she wanted to go back to living with her grandparents during the week and
her mother on weekends.
Another of mother’s children, M.G., reported that her mother was depressed
because of discord caused by father, who wanted to be with mother and tried to fight with
mother’s boyfriend. M.G. said father thought he was still in a relationship with mother,
but that was not correct.
The paternal grandparents were upset the minors were removed from their home
and felt they were well cared for. They complained everyone was lying. When asked
about Mi.W.’s medicine, grandmother said Child Protective Services (CPS) had asked the
parents to fill the prescription to show responsibility. Contrary to the grandparent’s
previous report that their son stayed with them when the children were there,
grandmother reported that father did not live in their home but only visited when the
children were there. The grandparents wanted the minors returned to their home.
The February 19, 2019 addendum indicated father had missed visits with the
minors and had lied about beginning drug testing. His last drug test was from 2012.
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The March 5, 2019 addendum said paternal grandparents were in the process of obtaining
approval to provide a home for the minors. The grandparents had cared for the children
during the week for the past three years and were familiar with their needs. The
grandparents stated the minors were removed because of domestic violence between
mother and her boyfriend and repeated their previous assertion that everyone had been
lying to CPS.
The March 26, 2019 addendum relayed that the social worker approved of placing
the minors with the paternal grandparents once the resource family approval process was
finished, which required the completion of two more parenting classes. Father had
visited the minors, but was “no call no show” on two occasions. The social worker hoped
that placement of the minors with the paternal grandparents would make it easier for
father to visit the minors. At the March 26, 2019 hearing, Mi.W.’s attorney expressed
concern that the paternal grandparents failed to recognize when father was under the
influence and were not interested in learning why Mi.W. had told the school he was
afraid of father.
The April 23, 2019 addendum reported that the paternal grandparents were
defensive concerning father’s alcohol and/or drug use, but attested that they would not
condone his using any substances while visiting their home and would do what was
necessary to keep the minors safe. Paternal grandparents denied being aware that either
minor was ever afraid of father and stated they had never seen any signs of physical
abuse. Mi.W. had reported being bullied at school, but paternal grandparents’ attempts to
contact the school were unsuccessful because grandparents did not have legal authority
over the minors. The resource family approval social worker recommended the minors
for placement with paternal grandparents.
The combined jurisdiction/disposition hearing took place on April 23, 2019, at
which the parties submitted the matter on the social study reports. Father objected that
the allegations concerning his substance abuse and physical abuse were unsupported by
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the evidence. He further objected to out of home placement and argued that domestic
violence services were not required because the incidents occurred over 10 years before,
and he had already had services related to them.
The juvenile court sustained the allegations, finding it had jurisdiction over the
minors. The juvenile court reviewed and considered the written record and found by
clear and convincing evidence that the minors were dependents. It determined that
placement with the paternal grandparents would be appropriate once their approval
process was complete and once services were in place to help the grandparents recognize
issues related to father’s substance abuse. Consistent with Mi.W.’s attorney’s request,
the juvenile court ordered that father’s visits would be supervised by someone other than
the paternal grandparents. The recommended findings and orders were adopted by the
juvenile court and incorporated in the order. Father was ordered to participate in
domestic violence and substance abuse programs.
STANDARD OF REVIEW
In reviewing a challenge to the sufficiency of the evidence supporting
jurisdictional findings and disposition, we determine if substantial evidence supports
them. (In re I.J. (2013) 56 Cal. 4th 766, 773.) We draw all reasonable inferences from
the evidence to support the findings and orders; we review the record in the light most
favorable to the juvenile court’s determinations; and issues of fact and credibility remain
the province of the juvenile court. (Ibid.) We do not reweigh the evidence but merely
determine if there are sufficient facts to support the juvenile court’s findings. (Ibid.)
DISCUSSION
I
Father contends there is insufficient evidence to support jurisdiction over the
minors. He claims there is not enough evidence supporting the allegations concerning
mother, but even if there were, we should separately consider whether there is sufficient
evidence supporting the allegations pertaining to him. Although the Department asserts
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forfeiture,2 we address the merits and conclude there is sufficient evidence to support
jurisdiction.
Section 300, subdivision (b)(1) provides in relevant part that a child may fall
within the jurisdiction of the dependency court if “[t]he 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 the willful or negligent failure of the child’s parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with whom the child has
been left, or by the willful or negligent failure of the 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.” Section 300, subdivision
(c) provides for jurisdiction where “[t]he child is suffering serious emotional damage, or
is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety,
depression, withdrawal, or untoward aggressive behavior toward self or others, as a result
of the conduct of the parent or guardian or who has no parent or guardian capable of
providing appropriate care.”
The evidence indicates the minors were exposed to domestic violence. Father
admitted to domestic violence with mother, he engaged in physical fights with mother’s
boyfriend in front of the minors, and he was aware of domestic violence between mother
and her boyfriend yet continued to bring the minors to stay with mother on weekends.
2 A parent in a contested dependency proceeding “is not required to object to the
agency’s failure to carry its burden of proof.” (In re Javier G. (2006) 137 Cal. App. 4th
453, 464.) Rather, a “ ‘ “contention that a judgment is not supported by substantial
evidence . . . is an obvious exception to the [forfeiture] rule.” ’ ” (In re Gregory A. (2005)
126 Cal. App. 4th 1554, 1560; see In re R.V. (2012) 208 Cal. App. 4th 837, 848 [parent’s
challenge to removal order “on the ground of insufficient evidence . . . is not forfeited
even if not raised in the juvenile court”].)
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Father made a comment that led Mi.W.’s school to lock down and to forbid him from
bringing the minors to campus.
In addition, Mi.W. had escalating mental health problems resulting in two
section 5150 holds for threats and acts of self-harm. But none of his caregivers obtained
his psychotropic medication or followed up to provide him with mental health counseling
and other services. A.W. was repeatedly absent from school and needed a new nebulizer.
The minors were not receiving regular dental or medical care.
Moreover, both mother and father had untreated mental health and substance
abuse problems affecting their ability to provide appropriate care for the minors. Mother
suffered from untreated depression, bipolar disorder, and anxiety. She also used
methamphetamine. Father had an untreated bipolar disorder, he admitted to use of
opiates and to excessive alcohol consumption, and he repeatedly refused to test. The
social worker observed that father’s appearance was consistent with methamphetamine
use, and mother disclosed that father was using methamphetamine.
Sufficient evidence supports the juvenile court’s exercise of jurisdiction.
II
Father next contends there is insufficient evidence of current risk to support the
minors’ removal from the paternal grandparents. He claims the order must be reversed
because reasonable efforts were not made to avoid removal. We disagree.
First, the record does not establish that paternal grandparents had been designated
as the minors’ legal guardians or custodians at the time these proceedings were
commenced. Instead, it appears the minors were staying with father in the grandparents’
home during the week and with mother on the weekends. As such, the minors were not
removed from the paternal grandparents, they were removed from the custody of father
and mother.
A juvenile court may remove a child from the parent with whom he or she resides
if the court finds by clear and convincing evidence that “[t]here is or would be a
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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.” (§ 361, subd. (c)(1).)
Here, the record shows reasonable efforts by the Department. It instructed mother
to attend parenting, domestic violence and counseling programs and to drug test. It also
referred the minors for counseling and directed mother to reestablish Alta California
Regional Center services for both herself and the minors, as well as to refill Mi.W.’s
psychiatric medication and establish outpatient psychiatric services. Mother agreed she
would coordinate with paternal grandparents regarding school and regional center
services. Both parents were directed to coordinate with paternal grandparents to assure
the minors’ medical, dental, mental health, and school needs were taken care of. This
included Mi.W.’s mental health and medication needs following his second release from
5150 hospitalization. In addition, the Department directed father to drug test. However,
both mother and father repeatedly failed to comply with Department instructions intended
to keep the minors’ safe and prevent the need for removal. Father refused Department
services.
Even if the minors had been in paternal grandparents custody prior to removal, the
same facts supporting the removal of the minors from father would support removal from
grandparents. Paternal grandparents claimed not to know about father’s substance abuse
even though father admitted using opiates and consuming an entire bottle of alcohol in
one evening while he was staying with them. Paternal grandparents were also dismissive
of repeated reports that father physically abused Mi.W. and that Mi.W. feared father.
But paternal grandparents were concerned about father’s untreated mental health
problems and complained that father would not listen to them. Further, while staying
with grandparents, Mi.W. was subject to two section 5150 holds within a 30-day period,
and grandparents failed to obtain Mi.W.’s required psychiatric medicine or get him into
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therapy. Moreover, grandparents permitted father to take the minors to their mother,
who suffered from known substance abuse, mental health, and domestic violence issues.
They did not obtain a nebulizer for A.W. or ensure that she attended school. Sufficient
evidence supports the juvenile court’s determination that reasonable efforts were made to
prevent removal and that removal was required. (In re Jason L. (1990) 222 Cal. App. 3d
1206, 1214.)
III
Father further argues that the domestic violence services ordered in his case plan
are not supported by substantial evidence.
“ ‘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.’ [Citation.] In
reviewing an order for abuse of discretion, we ‘ “must consider all the evidence, draw all
reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to
the trial court’s ruling. [Citation.] The precise test is whether any rational trier of fact
could conclude that the trial court order advanced the best interests of the child.” ’
[Citation.] ‘The trial court is accorded wide discretion and its determination will not be
disturbed on appeal absent “a manifest showing of abuse.” [Citation.]’ [Citation.]”
(In re Natalie A. (2015) 243 Cal. App. 4th 178, 186-187 [reviewing court order requiring
father to participate in drug services and testing despite father’s denial of drug abuse
problem].)
Requiring father to participate in domestic violence services was reasonably
related to the family’s reunification needs. Both mother and father conceded their
relationship had a history of domestic violence. Moreover, father had engaged in
physical fights with mother’s boyfriend in front of the minors, and father was aware of
domestic violence between mother and her boyfriend yet brought the minors to stay with
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mother on weekends. Under the circumstances, the juvenile court did not abuse its
discretion in requiring father to participate in and complete a domestic violence program.
IV
Father further claims the juvenile court abused its discretion in ordering that his
visits be supervised by someone other than the paternal grandparents.
Section 362.1 provides in part: “(a) In order to maintain ties between the parent or
guardian and any siblings and the child, and to provide information relevant to deciding
if, and when, to return a child to the custody of his or her parent or guardian, or to
encourage or suspend sibling interaction, any order placing a child in foster care, and
ordering reunification services, shall provide as follows: [¶] (1)(A) Subject to
subparagraph (B), for visitation between the parent or guardian and the child. Visitation
shall be as frequent as possible, consistent with the well-being of the child. [¶] (B) No
visitation order shall jeopardize the safety of the child.” (§ 362.1, subd. (a)(1)(A)(B); see
In re Daniel C. H. (1990) 220 Cal. App. 3d 814, 838-839 [visitation may be limited if the
juvenile court finds it is not in the child’s best interest].)
In visitation matters, the juvenile court is accorded broad discretion. We review
visitation orders for abuse of that discretion. (In re R.R. (2010) 187 Cal. App. 4th 1264,
1284; In re Megan B. (1991) 235 Cal. App. 3d 942, 953.) “ ‘ “The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds of reason. When two
or more inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.” ’ ” (In re Stephanie M.
(1994) 7 Cal. 4th 295, 318-319.)
There is evidence that paternal grandparents were not adequate supervisors for
father’s visits. They claimed no knowledge of father’s substance abuse and did not
pursue Mi.W.’s allegations of physical abuse by father. The minors were appropriately
removed from father’s custody while the family was staying in the paternal grandparents’
home. Thus, the juvenile court was well within its discretion in determining that
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someone other than grandparents would be required to supervise visits with father until
paternal grandparents had completed suitable services aimed at bolstering their ability
to safely supervise father’s visits with the minors.
DISPOSITION
The juvenile court orders are affirmed.
/S/
MAURO, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
HULL, J.
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