In re A.R. CA2/4 ( 2021 )

Filed 3/17/21 In re A.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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 FOUR
In re A.R., B306512
(Los Angeles County
a Person Coming Under the Juvenile Super. Ct. No. 19CCJP00433B)
Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.R.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Annabelle G. Cortez, Judge. Affirmed.
Anuradha Khemka, by appointment of the Court of Appeal, for
Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County
Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff
and Respondent.
E.R. (mother) appeals from a juvenile court’s dispositional order
removing her four-year-old son, A.R., from her custody. She contends
that the juvenile court failed to state its factual finding in support of its
determination to remove A.R. from her care, and that the evidence does
not support such a determination. (Welf. & Inst. Code, §§ 361, subds.
(c)(1), (e).)1 We conclude that mother forfeited her objection to the lack
of express findings, that any error was harmless, and that substantial
evidence supports removal. Accordingly, we affirm.
BACKGROUND
Prior Dependency Proceedings
In September 2017, a dependency action was initiated involving
then one-year-old A.R. (born Jan. 2016). That proceeding involved
allegations of domestic violence against mother by A.R.,’s father (who is
not a party to this appeal) in the child’s presence. In December 2017,
the court issued a three-year restraining order (R.O.) to protect mother
and A.R. from father.
Mother received 17 months of family maintenance services, after
which DCFS reported that, although she had nearly completed her
court-ordered case plan, mother had gained little insight regarding
domestic violence. Father had received a five-year prison sentence for
the domestic violence and was ineligible for parole before May 2020. At
1 Statutory references are to the Welfare and Institutions Code.
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the conclusion of the proceeding, mother was given sole legal and
physical custody of A.R.
The Current Dependency Action
On December 16, 2019, DCFS received a referral alleging that
father had beaten mother during an argument in mother’s home while
A.R. was present. Police officers who responded found mother with
black eyes and other visible injuries. She appeared very nervous and
slightly intoxicated. Father fled before the officers arrived. Mother
said father had been released from prison in November 2019, and had
returned to stay with her and A.R. despite the outstanding R.O.
In preparation for the detention hearing, DCFS reported that
mother claimed father was “very controlling, demanding and use[d]
[A.R.] to get what he want[ed] by making threats to hurt [the child] if
mother [did] not allow him in the home. [Father] also threatened to kill
mother, [A.R.] and [mother’s] family if she did not comply with his
demands.” DCFS reported that both parents drank alcohol and
smoked marijuana around A.R. Despite the R.O., mother acknowledged
having contact with father (exchanging texts, receiving calls) and
visiting him while he was incarcerated. During his incarceration,
father continued to control and threaten mother.
Regarding the December 16, 2019 domestic violence incident,
mother told the police that father entered the apartment without
permission while she was out and waited for her to come home. After
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she arrived, he punched her in the stomach and face. She escaped to
the maternal grandmother’s (MGM) apartment nearby.
When DCFS interviewed mother on December 16, she
acknowledged that her recall of events might be unclear, as she was out
drinking and smoking marijuana with friends the night before while
A.R. spent the night with his paternal grandmother (PGM). She said
father entered the apartment while she was gone and began beating her
when she returned. Mother acknowledged the outstanding R.O. and
denied that father lived with her or that they were still involved in a
relationship. She denied using drugs other than marijuana, and agreed
to take a drug test, which was negative.
During a meeting with DCFS later in December, mother admitted
having allowed father and A.R.’s paternal grandparents (PGPs) into her
home over Christmas. She acknowledged the R.O. was still in place and
she was wrong to have allowed father to visit. Mother agreed to
cooperate with DCFS, to be protective of A.R., and to not permit father
to visit A.R. again at her home.
In mid-January 2020, an anonymous caller informed DCFS that
mother was still spending time with father and had told the caller she
was pregnant with father’s child. The caller said mother spent New
Year’s Day with father at his home. On January 17, 2020, DCFS
removed A.R. from mother and placed him in protective custody in the
care of a maternal aunt.
On January 22, 2020, DCFS filed a section 300 petition on behalf
of A.R. alleging the child was at risk of serious physical harm as the
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result of the parents’ violent altercations and histories of substance
abuse. The juvenile court ordered A.R. detained from parents’ custody
and gave parents monitored visitation. The matter was set for an
adjudication hearing which, for various reasons, was continued from
March to July 2020. In January 2020, father turned himself in to the
police to face charges of burglary and domestic violence regarding the
December 2019 domestic violence incident.
Meanwhile the current DCFS social worker spoke with a social
worker who had worked on the family’s 2017 dependency action. That
social worker recalled that mother had made questionable decisions,
such as visiting father in prison in violation of an active R.O. and giving
him money. The previous social worker also said mother denied any
domestic violence and declined services for A.R. despite the child’s
displays of aggression.
In early February 2020, the facilitator for mother’s domestic
violence group and individual counseling reported to DCFS that mother
attended treatment sessions consistently and was remorseful about
domestic violence in the family’s home. The facilitator opined that
mother was protective of A.R. and did not present a safety concern to
him.
The maternal aunt told DCFS that A.R. was adjusting to living in
her home, but problems remained. A.R. had angry outbursts, and
would strike himself and others when he became upset. When family
members spoke loudly, he became startled and afraid; he would hide,
shake, and try to hug the maternal aunt for comfort. When she set
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limits for him, he threatened, “I am going to tell my dad to hit you.”
The aunt also reported that A.R. missed mother and cried when he
talked to or saw her.
In mid-February, an assessor from the Multidisciplinary
Assessment Team (MAT)2 met with mother and expressed concern that
she was defensive and difficult to work with. The assessor reported
that mother minimized father’s domestic violence against her and
believed A.R. was not at risk because father was in custody. Also,
mother had changed jobs, father did not know where she worked, and
mother planned to move out of her current apartment. However, the
MAT assessor observed that very young children exposed to domestic
violence may be at high risk for externalized behavioral problems,
tantrums and aggression. The assessor recommended therapy for A.R.
because his developmental and emotional status remained vulnerable
due to his history of trauma.
DCFS discussed the allegations of the petition with mother on
February 20, 2020. Mother told DCFS that PGPs came to her home on
Christmas, and she let them take A.R. outside to receive a present from
father. She denied violating the R.O., and denied that she had used
marijuana or had any problem with alcohol.
As to the December 2019 domestic violence incident, mother said
she recalled little. She had been out drinking and smoking marijuana
2 MAT is a collaboration between DCFS and the Department of Mental
Health designed to ensure immediate and comprehensive assessment of
children entering out-of-home placement.
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with friends while A.R. was at the PGM’s house (the PGM denied
babysitting A.R. at the time of the incident). Father broke into the
apartment, they argued, and she remembered being on the floor while
he hit her. She escaped to MGM’s apartment and called the police.
Mother denied seeing father or having had any contact with him since
his arrest for this incident, and also denied that father had ever “had
access” to A.R.
In early March 2020, the maternal aunt told DCFS that mother
used a separate cell phone to stay in contact with father. DCFS
reported that mother said she wanted to move somewhere father would
not know about and had been referred to an agency for financial help.
DCFS advised mother to obtain a new R.O. after the existing order
expired. Mother agreed to do so, but did not believe an R.O. would stop
father’s violence. Mother’s domestic violence counselor informed DCFS
that mother had been outspoken during group and individual sessions.
She believed mother had shown good judgment and had acknowledged
her failure to protect A.R.
In March 2020, mother informed DCFS she had closed her inmate
visitation account, had moved to a confidential address and had no
interest in resuming a romantic relationship with father.
DCFS received a June 30, 2020 letter from the counselor for
mother’s domestic violence support group. The counselor reported that
mother’s participation in the group was satisfactory: she had enrolled
in treatment in January 2020, and had attended 21 of 26 sessions.
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The counselor also reported that mother had been participating in
individual counseling sessions “to process traumatic events of her
victimization.” Her treatment goals were to overcome negative and self-
defeating thoughts, and to control her anger and to resolve conflicts
without violence. She was continuing to address case issues, including
protecting A.R. from additional abuse, and was making “good progress”
in treatment and putting into practice concepts she learned in therapy.
The counselor said mother appeared to have a better understanding of
how to avoid and prevent violence in her family relationships. She had
attended 24 individual counseling sessions and missed two.
In its report for the jurisdictional hearing, DCFS expressed
concern that mother minimized the extent of the domestic violence
between herself and father. DCFS was also troubled by several
inconsistencies in mother’s account of events in the December 2019
incident. For example, mother had told a DCFS investigator she had
not allowed father into her home on Christmas, but told a social worker
that both father and the PGP’s were there. Mother claimed A.R. was
with PGM at the time of December 2019 incident of domestic violence,
but PGM denied babysitting the child that night. Mother told DCFS
she recalled little about the December 2019 incident, but she gave the
police a detailed account. Finally, mother denied smoking marijuana
before the incident when she spoke with a DCFS investigator, but
admitted having done so to the social worker.
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Jurisdiction/Disposition
A combined adjudication/disposition hearing was conducted on
July 1, 2020. The court admitted the parties’ documents in evidence.
Mother’s counsel argued that mother should be deemed
nonoffending and that A.R. was not at risk of harm given mother’s
progress in treatment at addressing case-related issues. DCFS, joined
by A.R.’s counsel, disagreed.
The juvenile court concluded A.R. remained at current risk of
harm. The court referred to the previous dependency proceeding, recent
violence between the parents, and “multiple instances . . . where
[parents] did not comply with [the R.O.].” It observed that, although
mother had “recanted” her admission of having allowed father into her
home, other evidence supported a conclusion that she had in fact
violated the R.O. Further, the court acknowledged that although
mother had made progress in her ability to recognize the severity of
father’s violence, there also was evidence she had been in denial as to
the fact or extent of his domestic violence. In addition, father was not
involved in services and remained a risk to A.R. despite the fact that he
was currently in custody. The court found this circumstance
particularly troubling given the fact that “mother’s explanation [wasn’t]
necessarily consistent with what others indicate[d] regarding [her]
contact with the father.” The juvenile court sustained count b-1 of the
petition and dismissed the remaining allegations.3
3 The sustained allegations state: “[Parents] have a history of engaging
in violent physical altercations. On 12/16/19 the father struck the mother on
the stomach and face multiple times with a close [sic] fist resulting in the
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Proceeding to disposition, mother’s counsel pointed out mother’s
consistent participation and significant progress in treatment for
domestic violence. Counsel acknowledged that DCFS preferred to
proceed more cautiously, progressing from monitored to unmonitored
visits, then overnights. However, mother’s counsel argued that
approach was unnecessary because A.R. could remain safely in mother’s
care so long as she continued to participate in services and enforced the
R.O. Mother’s counsel noted that DCFS could make unannounced visits
to mother’s home, and informed the court that mother had developed a
safety plan with her landlord, who would summon the police if father
showed up at mother’s home.
Agreeing with arguments made by DCFS and counsel for A.R.,
including the argument by A.R.’s counsel that the circumstances of the
prior dependency action militated in favor of removal of A.R. from
mother’s care, the court observed that A.R. was at a tender age and
risked internalizing negative behaviors due to the domestic violence in
the home. The court found DCFS had satisfied its burden, particularly
given the multiple “inconsistencies” in mother’s statements to DCFS.
The court “completely agree[d] with [A.R.]’s counsel in his assessment of
mother sustaining abrasions and pain to [her] face. The mother failed to
protect the child by allowing the father to have unlimited access to the child.
The child is a prior dependent of the Juvenile Court Services due to the
parent’s domestic violence. The [parents] violated the restraining order. The
father has multiple convictions for” violent crimes, including spousal battery
and assault with a deadly weapon. “Such violent conduct on the part of the
father against the mother and the mother’s failure to protect the child
endangers the child’s physical health and safety and places the child at risk
of serious physical harm, damage, danger and failure to protect.”
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the risk [to A.R.] in this case.” The court “adopt[ed] by reference the
facts” that both it and DCFS had noted in the adjudication portion of
the hearing, as well as those identified by A.R.’s counsel as to
disposition, “understanding that the burden that [DCFS] has at
disposition is a much higher burden, and . . . finding that [DCFS] has
met that burden.”
The juvenile court found that, viewed in totality, although mother
had progressed in treatment, her progress was not sufficient to mitigate
the risks to A.R., such as those identified in the MAT assessment. The
court wanted to see evidence mother could act in a protective manner
and enforce the R.O. during unmonitored visits. The court understood
mother’s argument that unmonitored visitation was not required before
A.R. was restored to mother’s care. However, the court found that a
cautious transition plan was “important in this case given the multiple
violation[s] of the restraining order.” Such a plan would provide DCFS
an opportunity closely to monitor mother’s contact and to liberalize her
visitation to overnights when appropriate, with the aim of eventually
obtaining a home of parent order. The court observed that, before A.R.
could safely be transitioned to mother’s care it was important to see
mother consistently engage in protective behavior during visits and
remain available to DCFS in order to ensure there were no further
issues. The court wanted to provide DCFS an adequate opportunity to
assess mother’s protectiveness, and to be sure she enforced the R.O. If
DCFS was satisfied that unmonitored and eventual overnight visitation
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went well, the court remained hopeful it would soon be able to
transition the matter to a home-of-parent order.
The juvenile court declared A.R. a dependent of the court and
removed him from parental custody. Mother was given reunification
services and unmonitored visitation.
DISCUSSION
Mother contends that the juvenile court failed to specify its factual
findings in support of its determination that there were no reasonable
means to prevent the need to remove A.R. from her care, and that the
evidence does not support such a determination. We conclude that
mother has forfeited her objection to the lack of factual findings, that in
any event any error was harmless, and that substantial evidence
supports the removal order.
“A dependent child shall not be taken from the physical custody of
his or her parents . . . with whom the child resides at the time the
petition was initiated, unless the juvenile court finds clear and
convincing evidence . . . [¶] [t]here 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.” (§ 361, subd. (c)(1).)
However, once it has assumed jurisdiction over a dependent child,
“‘the court may limit the control to be exercised over the . . . child by
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[either] parent.’” (In re Anthony Q. (2016) 5 Cal.App.5th 336, 346.)
“The parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate. The focus of the statute
is on averting harm to the child.” (In re T.V. (2013) 217 Cal.App.4th
126, 135–136.)
Before removing a child from a parent’s care, the juvenile court
must determine “whether reasonable efforts were made to prevent or to
eliminate the need for removal of the minor from his or her home.”
(§ 361, subd. (e).) The statute also requires the court to state the facts
on which its decision to remove the child is based; failure to do so is
error. (In re D.P. (2020) 44 Cal.App.5th 1058, 1067.)
However, such error is not reversible per se. If it is not reasonably
probable the juvenile court would have reached a different conclusion
had it specified the factual bases for its finding, the error is harmless.
(See In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, disapproved
on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735,
748, fn. 6.) In addition, a well-established rule provides that an
appellate court “‘ordinarily will not consider a challenge to a ruling if an
objection could have been but was not made in the trial court.
[Citation.] The purpose of this rule is to encourage parties to bring
errors to the attention of the trial court, so that they may be corrected.
[Citation.]’ [Citation.]” (In re Daniel B. (2014) 231 Cal.App.4th 663,
672.)
Here, Mother maintains the juvenile court failed to state the
factual bases for its dispositional finding that no there were no
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reasonable means to prevent A.R.’s short of removal from her care.
Mother’s counsel raised no objection at the dispositional hearing
regarding the court’s failure to satisfy the requirements of section 361,
subdivision (e). Accordingly, mother has forfeited her argument that
the court failed to satisfy the statutory requirements.
In any event, to the extent the court erred, the error is harmless
because it is not reasonably probable the juvenile court would have
reached a different conclusion had it specified the factual bases for its
finding. (In re Diamond H., supra, 82 Cal.App.4th at p. 1137.) The
record reflects that the juvenile court did consider—and rejected—
whether means existed to permit A.R. to remain safely in mother’s
care.4 The court acknowledged that it could release A.R. to mother’s
care without taking the preliminary steps of providing her unmonitored
visitation. But the court rejected that approach. It explained at length
why under the circumstances it concluded it was prudent to proceed
incrementally and with caution.
To the extent the court erred by incorporating by reference the
arguments of counsel, any error was harmless. For example, A.R.’s
counsel argued that mother’s conduct in the prior dependency action
two years earlier militated in favor of adopting a more cautious
approach here. The juvenile court expressly agreed with this argument,
and it is obvious why. In the prior dependency action, mother was the
4 The standard-form minute order indicates the court made an explicit
finding that there were no reasonable means to protect A.R. short of removal
from mother’s care. The reporter’s transcript does not contain an
equivalently specific finding.
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victim of domestic violence so severe that father was sentenced to five
years in prison. That violence occurred in A.R.’s presence. Mother
obtained an R.O. and took part in a program aimed at educating victims
of domestic violence. However, despite her participation in that
program, mother maintained contact with father in violation of the R.O.
The cycle of domestic violence began again in December 2019 in
A.R.’s presence after father was released from prison. Once again
mother took part in domestic violence counseling. And once again there
was evidence she continued to spend time with father, permitted him
into her home while A.R. was there, and lied about it. The court
observed that four-year-old A.R. had displayed fear and aggression in
ways common to children exposed to the trauma of domestic violence.
Given this history, along the legitimate questions regarding mother’s
veracity and the degree to which she was committed to moving beyond
her violent relationship with father, the court reasonably concluded
that it was wise to proceed more slowly with unmonitored and eventual
overnight visits. Doing so would give DCFS an adequate opportunity to
monitor developments, and to ensure that mother enforced the R.O.,
visited A.R. alone, and behaved “protective[ly].” To the extent the
juvenile court might have erred in not specifying certain factual
findings, that error was harmless. It is not reasonably probable mother
would have received a more favorable result had the court more
explicitly complied with section 361, subdivision (e). (See In re Cristian
I. (2014) 224 Cal.App.4th 1088, 1098–1099 [before a judgment may be
reversed for ordinary error, it must appear the error about which
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appellant complains has resulted in a miscarriage of justice and that,
upon examination of the record, it is reasonably probable that the court
would have reached a result more favorable to appellant in the absence
of error].)
For similar reasons, we also reject mother’s contention that the
evidence is insufficient to support removal, and that an order releasing
A.R. to her care and requiring DCFS to make unannounced visits would
suffice to ensure her progress and A.R.’s safety in her care. Of course,
evidentiary conflicts are resolved in favor of the lower court’s order and,
where possible, legitimate inferences are indulged to uphold the
decision. We do not reweigh or express an independent judgment on
the evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.)
Random visits by DCFS would be of limited utility. They would
not permit DCFS to assess the family’s situation at any time except
during the visit. Nor would mother’s proposed “safety plan” with her
landlord suffice. There was certainly no guarantee that the landlord
could prevent father from breaking into mother’s home while A.R. was
present, or from waiting outside for her to return with A.R. Moreover,
given that mother had failed to enforce the R.O. in the past, there was
reason to believe that she would not do so in the future. Further, as
mother conceded to DCFS, she did not believe father’s violence would
stop even if she renewed the R.O.
On the other hand, providing mother with unmonitored visitation
during which her progress, her compliance with the R.O., and her
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ability to protect Aiden could be monitored by DCFS, was a reasonable
course of action. Substantial evidence supports the disposition order.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
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