In re Serenity T. CA2/2 ( 2023 )

Filed 4/6/23 In re Serenity T. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re SERENITY T. et al., B314686
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No.
18CCJP07071B-E)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
N.M.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of
Los Angeles County. Hernan D. Vera, Judge. Affirmed.
Donna Balderston Kaiser, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Appellant N.M. (mother) appeals from the juvenile court’s
jurisdictional findings regarding her four children and the
subsequent dispositional order removing them from her custody.
She argues that both the jurisdictional findings and the removal
order are unsupported by substantial evidence. We affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Family and Prior Dependency Case
Mother has four children, Serenity T. (born Dec. 2007),
Samuel R. (born Sept. 2009), S.R. (born Nov. 2010), and A.P.
(born Oct. 2018).1
In 2016, mother’s struggles with substance abuse issues
prompted her three eldest children to move to Ohio to live with
their maternal great-grandmother (great-grandmother).
In 2018, when A.P. was born, mother tested positive for
amphetamines. In subsequent weeks, she tested positive for
amphetamine, alcohol, and marijuana. Consequently, the
juvenile court declared newborn A.P. a dependent of the court
and removed her from mother’s custody.2
1 The children’s fathers are not parties to this appeal.
2 In the course of this proceeding, A.P.’s father alleged that
he had Choctaw ancestry. In accordance with the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), the juvenile court
2
In January 2020, the juvenile court terminated its custody
over A.P. and returned her to mother. Mother’s three eldest
children then moved back to Los Angeles to live with Mother and
A.P.
II. Inciting Incident
On June 6, 2020, the Los Angeles County Department of
Children and Family Services (DCFS) received a referral alleging
that mother had reported that the children’s maternal
grandmother (grandmother) had kidnapped them, which
grandmother denied. The referral also alleged that the two
oldest children, Serenity and Samuel, had reported that mother
had punched them, hit them with a belt, and failed to provide
them with adequate food.
When contacted by DCFS, mother said that, during a
recent visit, grandmother had demanded a portion of the
settlement money that mother had received after being the victim
of a crime. After mother refused these demands, grandmother
kidnapped the children and took them to her home in Louisiana.3
ordered notice sent to the Bureau of Indian Affairs and the three
federally recognized Choctaw tribes. Two of the tribes informed
the juvenile court that A.P. was not an Indian child as defined by
ICWA; the third tribe did not respond. In July 2019, the juvenile
court found that it had no reason to know that A.P. was an
Indian child per ICWA.
3 A social worker in Louisiana told DCFS that mother had
“denied placing a kidnapping report,” and had actually
“requested that the children stay” with grandmother in
Louisiana. When the social worker informed mother that it
would be impossible for the children to stay in Louisiana due to
the kidnapping report, mother insisted that she had never made
3
Great-grandmother told DCFS investigators that she did
not understand why mother had accused grandmother of
kidnapping, as the children stayed with grandmother in
Louisiana “every summer.” Great-grandmother also reported
that Serenity and Samuel had told her that mother was “leaving
the[] [children] alone and . . . drinking alcohol.”
Mother denied hitting any of the children or leaving them
by themselves, and agreed to submit to drug testing. She
subsequently tested positive for marijuana and alcohol, with her
blood alcohol content registering at 0.17 percent.
When the children returned to Los Angeles, social workers
separately interviewed Serenity and Samuel. Serenity said that
mother had hit her on the arms, legs, and buttocks with a belt
and the cord of a cell phone charger. She said that the most
recent episode occurred two months earlier, when mother had
taken the children with her to Las Vegas and then stayed out for
an entire night. When mother returned in the morning, Serenity
and Samuel asked her where she had been; mother became upset,
told them to “shut the f*** up,” and, when they continued asking
questions, took her phone charger out of the wall outlet and
began hitting them with it.
Serenity also reported that mother sometimes left the
house to go drinking and would not return for a couple of days.
She complained that there was “never anything for [the children]
to eat” in the house.
Samuel confirmed that mother sometimes beat him. He
said that the last time she hit him was after their return from the
any such report and that she wanted the children to remain with
grandmother.
4
Las Vegas trip; he had called grandmother to let her know that
the family was back home, and mother “‘got upset and slapped
[him] in the face with her hand because [he] wasn’t supposed to
tell anyone.’” Samuel also agreed that mother drank frequently.
When asked what he needed from mother, Samuel started crying
and said that he “‘need[ed] her to grow up, stop going out with
boys she doesn’t know, stop drinking, and stop leaving us at home
by ourselves.’”
On June 18, 2020, the juvenile court issued an expedited
removal order. DCFS diligently attempted to serve mother with
the removal order, but mother could not be reached for two days.
When DCFS contacted her by phone, mother said that she was at
a friend’s home and could not give DCFS an address, but
confirmed that she would meet a social worker at a DCFS office
that day. She did not appear with the children and failed to
answer subsequent phone calls. Accordingly, DCFS filed a
missing persons report with law enforcement to attempt to locate
mother and the children.
III. Jurisdiction Petition
On June 23, 2020, DCFS filed a petition pursuant to
Welfare and Institutions Code section 300,4 alleging that the
children were at substantial risk of suffering serious physical
harm based on mother’s physical abuse of Serenity and Samuel
(counts a-1, a-2, b-1, b-2, j-1, and j-2), substance abuse problems
4 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
5
(counts b-3 and j-3), and repeated instances of leaving the
children alone at night without adult supervision (count b-5).5
IV. Detention and Removal
On June 26, 2020, the juvenile court held a detention
hearing. Mother and the children failed to appear. The juvenile
court ordered the children detained from mother, issuing an
arrest warrant for mother and protective custody warrants for
the children.
On July 27, 2020, DCFS managed to contact mother and
convinced her to surrender the children at a DCFS office. The
arrest and protective custody warrants were subsequently
recalled.
The children were placed with different nonrelated
extended family members; Serenity and S.R. went to one home,
and Samuel and A.P. went to another.
V. Further Jurisdiction and Status Reports
In a subsequent jurisdiction and disposition report, DCFS
reported that Serenity and Samuel recanted their earlier
allegations that mother had left the children home alone.
Serenity said that grandmother had told her to make those
allegations to increase the children’s chances of being placed with
grandmother.
Both children repeated their allegations regarding physical
abuse and substance abuse. Serenity said that mother hit her
with a belt when she had done something mother did not want
her to do or to teach her to stop being “disrespect[ful]” to mother,
and that mother had hit Samuel in the face with her hand.
Serenity also believed that mother drank “a lot” of alcohol, which
5 The petition also included allegations against A.P.’s father
based on his substance abuse problems (count b-4).
6
caused her to become “irritated” and “mad” and hit the children.
Serenity reported seeing mother smoke marijuana and “snort
some white stuff” on one occasion.
Samuel denied that mother had ever hit him in the face,
but confirmed that she had “whooped” both him and Serenity
with a belt. He repeated his earlier statements about mother’s
drinking.
Serenity and Samuel’s younger sister S.R. claimed that she
had never seen mother hit her siblings or drink alcohol, and
denied that mother ever left the children alone.
Grandmother said that Serenity and Samuel had reported
prior incidents of physical abuse, including hitting Serenity in
the face and hitting Samuel with a wire hanger. And Samuel and
S.R.’s father said that both children had told him that mother
“‘would hit them,’” “‘drink[] around them and get[] drunk,’” and
“‘leave them home alone.’”
Mother denied ever hitting the children for any reason.
She blamed grandmother for the current case and the children’s
removal, accusing grandmother of coaching the children to lie.
She also blamed her alcohol use on grandmother, claiming that
she had “relapse[d]” into heavy drinking to cope with “stress”
arising from grandmother’s June 2020 visit. She admitted to
past cocaine and methamphetamine use, but claimed that she
had not used any drugs since 2018.
In September 2020, the juvenile court ordered DCFS to
provide mother with services and granted mother regular
monitored visitation. However, between October 2020 and
7
August 2021, DCFS reported that mother had not been
cooperative or fully engaged with services.6
Mother only had sporadic visitation with the children, and
often failed to respond to DCFS inquiries about her participation
in services. She submitted to one drug test in July 2021, and
tested positive for codeine, morphine, and marijuana. She failed
to appear for her second scheduled drug test.
VI. Jurisdictional and Dispositional Hearing
On August 20, 2021, the juvenile court held a combined
jurisdiction and disposition hearing.
At the hearing, mother testified that her positive tests for
codeine and morphine resulted from prescription medication.
She said that she had been hospitalized three times in 2021 for
seizures, for which she was given codeine; she also alleged that
she was prescribed morphine for high blood pressure. Mother
denied drinking any alcohol since June 2020, but admitted to
regular marijuana use.
Mother repeated her earlier kidnapping allegations against
grandmother. She blamed her inconsistent visitation on moving
to San Bernardino County, transportation issues, and becoming
homeless. Mother admitted that she had not participated in any
services.
The juvenile court sustained counts b-1, b-2, b-3, j-1, j-2,
and j-3 against mother, finding true the allegations regarding
mother’s physical abuse of Serenity and Samuel and mother’s
6 During this time, DCFS investigated reports that Serenity
and S.R. were being neglected and/or emotionally and sexually
abused in their current placement. Serenity subsequently
recanted these allegations, saying that grandmother had told her
to make false reports to facilitate future placement with
grandmother.
8
substance abuse. Accordingly, the court exercised jurisdiction
over all four children. Additionally, the juvenile court removed
the children from mother’s custody and ordered reunification
services for mother, to include drug and alcohol testing and
treatment, counseling, parenting classes, and monitored
visitation.
VII. Appeal
Mother timely appealed.
DISCUSSION
Mother argues that the juvenile court’s jurisdictional
findings and removal order should be reversed because both are
unsupported by substantial evidence.7 For the reasons below, we
disagree and affirm.
I. Jurisdictional Findings
Mother contends that the evidence was insufficient to
support the juvenile court’s jurisdictional findings under section
300, subdivisions (b)(1) and (j).
A. Applicable Law
Under section 300, subdivision (b)(1), the juvenile court has
jurisdiction over and may adjudge to be a dependent of the court
7 In her opening brief, mother also argued that the juvenile
court failed to satisfy its duties of inquiry under ICWA with
respect to her youngest daughter, A.P. DCFS then requested
that we take judicial notice of documents from the 2019
dependency proceeding involving A.P., in which all proper ICWA
inquiries were made, appropriate notices were sent to the Bureau
of Indian Affairs and relevant tribes, and the juvenile court
ultimately found that A.P. was not an Indian child. Mother
concedes that these documents fully resolve her ICWA argument.
Accordingly, since we granted the request for judicial notice, we
need not consider mother’s ICWA claims.
9
a “child [who] has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of
. . . [¶] . . . [t]he failure or inability of [his or her] parent . . . to
adequately supervise or protect the child . . .”
Jurisdiction also extends, under section 300, subdivision (j),
to a child whose “sibling has been abused or neglected, as defined
in [section 300,] subdivision (a), (b), (d), (e), or (i), and there is a
substantial risk that the child will be abused or neglected, as
defined in those subdivisions. . . .” In determining whether such
jurisdiction exists, the court must “consider the circumstances
surrounding the abuse or neglect of the sibling, the age and
gender of each child, the nature of the abuse or neglect of the
sibling, the mental condition of the parent or guardian, and any
other factors the court considers probative in determining
whether there is a substantial risk to the child.” (§ 300, subd. (j).)
“[S]ection 300 does not require that a child actually be
abused or neglected before the juvenile court can assume
jurisdiction. The subdivisions at issue here require only a
‘substantial risk’ that the child will be abused or neglected. . . .
‘The court need not wait until a child is seriously abused or
injured to assume jurisdiction and take the steps necessary to
protect the child.’” (In re I.J. (2013) 56 Cal.4th 766, 773.)
B. Standard of Review
We review the juvenile court’s jurisdictional findings for
substantial evidence—“evidence that is reasonable, credible and
of solid value. [Citations.] We do not evaluate the credibility of
witnesses, attempt to resolve conflicts in the evidence or
determine the weight of the evidence. Instead, we draw all
reasonable inferences in support of the findings, view the record
favorably to the juvenile court’s order and affirm the order even if
10
there is other evidence supporting a contrary finding.” (In re R.V.
(2012) 208 Cal.App.4th 837, 843.)
C. Analysis
Substantial evidence supports the juvenile court’s
jurisdictional findings as to all four children. Regarding the
physical abuse findings, Serenity and Samuel repeatedly said
that mother hit them with a belt, a cell phone charger, or her
hand. Although they occasionally recanted some details, they
maintained that mother “whooped” them with a belt and with her
hand to discipline them, and that, when drinking, she would get
“irritated” and hit them. Both grandmother and Samuel and
S.R.’s father said that the children had reported that mother
would hit them. This tendency to physically lash out when
frustrated or upset, especially after drinking, risks not just
Serenity and Samuel’s safety, but also their younger siblings’.
This evidence is also relevant to the substance abuse
findings issued against mother. Not only is the record replete
with evidence of mother’s substance abuse—including multiple
positive drug and alcohol tests—but Serenity expressly linked
mother’s inebriation to her short temper and physically abusive
conduct. Mother admitted that she was prone to excessive
drinking when stressed, yet made no effort to engage in
treatment services in the year between the children’s detention
and the juvenile court’s exercise of jurisdiction. And A.P.,
mother’s youngest child, was only two years old at the time of the
jurisdiction hearing. (See In re Christopher R. (2014)
225 Cal.App.4th 1210, 1219–1220 (Christopher R.) [children “six
years old or younger at the time of the jurisdiction hearing” are
“children of ‘tender years’” for whom “the finding of substance
abuse is prima facie evidence of the inability of a parent or
11
guardian to provide regular care resulting in a substantial risk of
harm”].)
Mother raises three arguments against our conclusions.
First, she contends that the physical abuse allegations are
unsupported because Serenity admitted to being coached by
grandmother to lie about mother’s behavior. However, Serenity
only attributed grandmother’s coaching to allegations that
mother would leave the children alone—which the juvenile court
did not sustain. Serenity did not recant any statements about
physical abuse. Samuel did attempt to walk back his prior
statement that mother had hit him in the face with her hand, but
Serenity consistently repeated her claims that mother had hit
Samuel with both a belt and with her hand. Viewing the record,
and particularly the children’s statements, as a whole,
substantial evidence supports the juvenile court’s conclusion that
mother had physically abused Serenity and Samuel.
Mother also argues that any alleged hitting, either with an
object or with her hand, was acceptable discipline rather than
impermissible physical abuse. We cannot agree. Serenity and
Samuel stated that mother hit them not just to discipline them,
but also when she was drinking, “irritated,” or “mad.” In one
instance, mother repeatedly hit the children with a cell phone
charger to stop them from asking questions about where she had
been the night before. In another, mother hit Samuel when he
failed to comply with her instruction to conceal the family’s
location from grandmother.
These instances do not fall, as mother argues, “within the
realm of permissible discipline.” The cases mother cites in
support of this argument are inapposite. (See In re Joel H. (1993)
19 Cal.App.4th 1185, 1201 [reversing physical abuse findings
12
based on the caregivers spanking a child with their hands, when
such spankings “were the [caregivers’] brand of discipline” and
“[t]here was no evidence that the [caregivers] struck [the child]
with objects,” such as “a . . . belt”]; In re Isabella F. (2014)
226 Cal.App.4th 128, 131–132, 139 [reversing physical abuse
findings where “nothing in the record . . . suggest[ed]” that
mother’s single physical altercation with her daughter was
anything other than “an isolated incident”].)
Second, mother argues that no evidence suggests a nexus
between mother’s substance abuse and a substantial risk of harm
to the children. Mother correctly states that, in order to exercise
dependency jurisdiction on the basis of a parent’s substance
abuse, there must be a “nexus” between the parent’s substance
abuse and the risk of harm to the child by virtue of the parent’s
“failure to ensure [that the child] w[as] safely cared for and
supervised.” (In re Natalie A. (2015) 243 Cal.App.4th 178, 185.)
But “[t]his is not . . . a case involving substance abuse without
more.” (In re L.W. (2019) 32 Cal.App.5th 840, 851.) Indeed,
mother’s argument ignores Serenity’s explicit statements that
mother would get “irritated” and hit the children after drinking,
as well as A.P.’s very young age (see Christopher R., supra,
225 Cal.App.4th at pp. 1219–1220).
Lastly, mother argues that S.R.’s consistent denials about
mother’s drinking demonstrate that mother never drank to
excess around the children. This argument ignores contradictory
evidence from S.R.’s father, reporting that both Samuel and S.R.
had told him about mother’s drinking, and from Serenity and
Samuel, who repeatedly attested to mother’s drinking. (In re
R.V., supra, 208 Cal.App.4th at p. 843 [under our standard of
13
review, we must “affirm . . . even if there is other evidence
supporting a contrary finding”].)
II. Removal Order
Mother also challenges the evidentiary basis for the
dispositional order removing the children from her custody.
A. Relevant Law
Before removing a child from parental custody, the juvenile
court is required to “make one of five specified findings by clear
and convincing evidence. (§ 361, subd. (c).) One ground for
removal is that there is a substantial risk of injury to the child’s
physical health, safety, protection or emotional well-being if he or
she were returned home, and there are no reasonable means to
protect the child. (§ 361, subd. (c)(1).) “‘Clear and convincing”
evidence requires a finding of high probability. The evidence
must be so clear as to leave no substantial doubt. It must be
sufficiently strong to command the unhesitating assent of every
reasonable mind. [Citations.]’ [Citation.] Actual harm to a child
is not necessary before a child can be removed. ‘Reasonable
apprehension stands as an accepted basis for the exercise of state
power.’” (In re V.L. (2020) 54 Cal.App.5th 147, 154.)
B. Standard of Review
We review a dispositional order removing a minor from
parental custody for substantial evidence. (In re V.L., supra,
54 Cal.App.5th at p. 154.) Because the juvenile court must make
its finding that a ground for removal exists under the clear and
convincing evidence standard of proof (§ 361, subd. (c)), “the
question before the appellate court is 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.)
14
C. Analysis
We find that substantial evidence exists from which the
juvenile court could find it highly probable that the children were
suffering a substantial risk of physical or emotional injury in
mother’s custody, and that there were no reasonable means to
protect the children short of removal. (§ 361, subd. (c)(3).)
The record shows that mother had a tumultuous history of
substance abuse and unstable parenting. In January 2020, she
regained custody of all four of her children for the first time in
over three years, after A.P. had spent the first year of her life in
foster care and the three older children had spent over three
years in Ohio with great-grandmother. Within five months,
mother’s substance abuse issues and physical abuse of her older
children caused the children to be detained from her care.
During this case, mother has demonstrated a pernicious
instability. She blames grandmother for the family’s troubles
and her own drinking, taking little to no responsibility for her
own actions—despite the fact that it was mother’s dubious
kidnapping claim that initially brought the family to DCFS’
attention. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197
[“One cannot correct a problem one fails to acknowledge”].)
Mother’s reported substance abuse and tendency to physically
lash out at the children when irritated, combined with her
repeated failures to acknowledge her problematic behavior,
cooperate with DCFS, and participate in rehabilitative services,
create a significant safety risk for the children if they remained
in her custody.
Mother argues that drug and alcohol testing and regular
social worker visits would obviate the need for removal. But the
record shows that mother was either incapable or unwilling to
15
submit to regular drug testing, demonstrated by her prior no-
show test and by DCFS’ frequent struggle to stay in contact with
her.8 And any unannounced visit could “only assess the situation
. . . at the time of the visit.” (In re A.F. (2016) 3 Cal.App.5th 283,
293.) This is particularly concerning considering A.P.’s extremely
young age, as children young enough to need constant
supervision face an “‘inherent’” and substantial risk of serious
physical harm if their caregiver is engaged in activity that
renders her less capable of providing the requisite supervision.
(Christopher R., supra, 225 Cal.App.4th at p. 1216.)
Mother also argues that DCFS never truly believed that
the children were in danger while in her custody, because they
did not remove the children on the same day the expedited
removal order issued. Mother cites no legal authority supporting
her proposition that this argument fatally undermines the
juvenile court’s ultimate removal order. (Landry v. Berryessa
Union School Dist. (1995) 39 Cal.App.4th 691, 699–700 [“When
an issue is unsupported by pertinent or cognizable legal
argument it may be deemed abandoned and discussion by the
reviewing court is unnecessary”].)
Nor is the argument factually sound; a cursory review of
the record reveals that what mother characterizes as DCFS’
delay in executing the expedited removal order actually reflects
mother’s evasiveness and failure to communicate with DCFS.
DCFS sought an expedited removal order three days after first
8 Even taking mother’s position that “[i]n the prior
[dependency] case involving [A.P.], [m]other had worked
diligently with [DCFS] and complied with services,” mother’s
actions in this current case do not indicate a present willingness
or ability to cooperate with DCFS or participate in services.
16
interviewing Serenity and Samuel; attempted to serve the order
over the next two days, only to be stymied by mother’s
unreachability and failure to follow through on her promise to
deliver the children to a DCFS office; and then immediately filed
a missing persons report in an attempt to locate mother and the
children. Contrary to mother’s arguments, these actions do not
belie a lack of urgency or undercut the need for removal.
DISPOSITION
The findings and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
_________________________, J.
CHAVEZ
_________________________, J.
HOFFSTADT
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