In re L.S. CA4/1 ( 2021 )

Filed 7/22/21 In re L.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re L.S. et al, Persons Coming
Under the Juvenile Court Law.
D078535
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. Nos. J520350A-B)
Plaintiff and Respondent,
v.
B.A.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Affirmed.
Shobita Misra, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel
and Emily Harlan, Deputy County Counsel for Plaintiff and Respondent.
B.A. (Mother) appeals a dispositional order entered in a juvenile
dependency proceeding removing her older son, L.S, from her custody
pursuant to Welfare and Institutions Code1 section 361, subdivision (c)(1).
The San Diego County Health and Human Services Agency (the Agency)
initiated the dependency proceeding after Mother’s younger son, M.S., was
hospitalized with multiple injuries from abuse. Mother contends substantial
evidence does not support the juvenile court’s dispositional findings. She also
claims the court erred by failing to consider less drastic alternatives when it
ordered that L.S. be removed from her care. We reject these challenges and
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Abuse of L.S.’s Sibling
Mother and J.S.2 (Father) have two sons, five-year-old L.S. and one-
year-old M.S. On April 7, 2020, Mother took then six-month-old M.S. to the
hospital after she noticed he was having difficulty using his left arm and
appeared to be in pain. Evaluations at the hospital revealed M.S. had
multiple injuries in different stages of healing. This included a spleen injury;
bruising of the left arm, right hip, abdomen, lower back, and ears; a scabbed
lesion and healing trauma on the left calf; bite marks on his left cheek and
right hand; multiple fractures of several extremities; and complex skull
fractures. A group of child abuse doctors concluded M.S.’s injuries were
highly specific for abuse, as the injuries were consistent with squeezing,
yanking, slamming or falling, and forceful grabbing.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 J.S. is the presumed father of L.S. and M.S. He is not a party to this
appeal.
2
Earlier medical records also showed that M.S. had been taken to the
hospital when he was 14 days old for inconsolable crying. During this
hospital visit, M.S. was found to have a bruise on his left hand and wrist.
One child abuse doctor determined this injury was also indicative of abuse.
Mother initially could not explain M.S.’s injuries other than suggesting
that then four-year-old L.S. was to blame. During her interview with the
investigating social worker, she described L.S. as “naughty” and “rough” with
M.S. She reported that two weeks prior to M.S.’s hospitalization, L.S. was
jumping on the bed and fell on M.S. Mother indicated that M.S.’s
hospitalization made her realize L.S. needed help for his hyperactivity.
Mother also suggested Father could be responsible for some of M.S.’s
injuries. For instance, she reported witnessing Father grab and squeeze M.S.
to the point that the child would grunt. However, she later said Father was
not at fault and was a “loving father” to the children.
Mother also accused the children’s maternal step-grandfather, who
lived with the family at the time, of abusing M.S. She told the social worker
the step-grandfather drank excessive amounts of beer daily and used to use
methamphetamine. She also disclosed that this step-grandfather sexually
abused her as a child. She acknowledged that it had not been safe for her to
leave her children alone with their step-grandfather.
Although L.S. was interviewed, he was initially unable to give any
details about the abuse. When asked by a forensic interviewer what
happened to M.S., L.S. replied, “baby crying, mama, papa[,] Tata,” with
“Tata” referring to his paternal step-grandfather. His speech then became
incomprehensible, and the forensic interviewer ended the interview due to
L.S.’s speech impediment
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2. L.S.’s Dependency Proceedings
Following the diagnosis that M.S. had suffered multiple injuries
indicative of abuse, the Agency filed dependency petitions on behalf of both
siblings. L.S.’s petition alleged he was at substantial risk of suffering harm
based on the injuries suffered by his brother. (See § 300, subd. (j).) The
Agency created a safety plan for L.S. and M.S., removing the children from
the parents’ custody and placing them with family members.
After the children were removed from the home, the parents had a
domestic violence dispute. According to the police report, Mother pushed
Father, causing him to fall and sustain minor injuries. The couple separated
and Mother began living with relatives.
This domestic violence incident occurred while Mother had been
participating in family reunification services, including a 52-week child abuse
group, in-home parenting, and individual counseling. As of mid-December
2020, Mother’s child abuse group progress report indicated that Mother still
had 25 sessions remaining before completing the program. She received
lower scores in the areas of acceptance of responsibility, empathy, and
insight, where the report specifically noted the need for improvement. For
example, although Mother had acknowledged M.S. “got hurt,” she had not
expressed empathy for his experience and her acknowledgement of
responsibility was limited.
L.S. also began receiving behavioral services. A family caregiver
reported L.S.’s behavior and speech had improved since being placed in her
care. L.S. also had a second forensic interview, in which the interviewer
noted that L.S.’s verbal abilities had “greatly improved” since being placed in
protective custody. When asked in the second interview about how his
brother was hurt, L.S. stated, “daddy hit [M.S.].” L.S. demonstrated how
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M.S. was hit with his open hands and then with fists to his face. He said he
felt “mad” and “sad” when his brother was hurt.
A paternal aunt and uncle provided additional details about the
parent’s treatment of the children. These relatives had lived with the family
for two months. They reported to a social worker that they did not view the
step-grandfather as responsible for M.S.’s abuse, and that they believed the
children would not be safe if returned to the parents’ care. They reported
that L.S. was hyperactive, “really wild,” and the parents were “too rough”
with him. The paternal aunt described both parents as “physical” with the
children, and that Mother was the more aggressive parent. The paternal
aunt reported observing Mother hit L.S. “on the butt” with an open hand and
with clothes on. She also reported witnessing Mother pull L.S.’s hair and
ears.
The contested adjudication and disposition hearing was held on
January 28, 2021. The juvenile court received the Agency’s reports into
evidence along with the social worker’s stipulated testimony. The social
worker stated that she had spoken to Mother one week prior to the hearing.
According to the social worker, Mother was currently living in a one-bedroom
apartment with her cousin and did not want to reunify with the children
until she found her own place. The Agency’s most recent report also noted
that Mother had “some anxiety about having the children in her care.”
Additionally, Mother had begun to suspect Father was responsible for M.S.’s
injuries.
As to the evidence submitted on Mother’s behalf, the juvenile court
received progress reports from Mother’s education classes and individual
therapy, visitation logs from her supervised visits with the children, Mother’s
handwritten child abuse prevention plan, an apology letter to her children,
5
her stipulated testimony, and a police report showing Mother was never
arrested for the domestic violence incident with Father. According to
Mother’s stipulated testimony, her cousin had given permission for the
children to move in while Mother looked for her own place to live.
Although the specific perpetrator of M.S.’s abuse had not been
identified, the Agency took the position that because the parents were M.S.’s
primary caregivers at the time of the abuse, one parent was the abuser and
the other parent knew or reasonably should have known about the abuse. As
to disposition, the Agency requested removal of both children due to the
substantial danger posed by remaining in the parents’ care. In the Agency’s
view, Mother was not ready to have custody because she was looking for
housing and was still in the process of accepting responsibility and
developing insight about the abuse. The Agency indicated that Mother could
potentially move forward to unsupervised visitation after the parameters
were discussed. The Agency’s arguments were adopted by the children’s
attorney.
Mother’s counsel countered that there was no evidence to show Mother
had caused M.S.’s injuries, nor had Mother ever physically injured L.S.
beyond spanking him for discipline. Although Mother was looking for a
larger home, that did not present a protective issue preventing placing the
children in her custody. Mother’s counsel argued that if the juvenile court
found jurisdiction, the court should order family maintenance or, in the
alternative, provide for overnight visitation.
In rebuttal, the Agency clarified that its concern about Mother’s living
arrangement was that, as of one week before the hearing, Mother was still
unsure of whether the children could live with her. The Agency further noted
that this was a “high risk” case and, given the severity of M.S.’s injuries and
6
the confirmation provided by family members that the parents were
aggressive with the children, the Agency did not believe Mother was ready to
receive custody.
After hearing arguments from the parties and reviewing the
documentary evidence, the juvenile court found the jurisdictional allegations
true by clear and convincing evidence as to both children. It further found
that reasonable efforts had been made to prevent or eliminate the need for
the children’s removal and to make it possible for the children to return
home. Nonetheless, the court believed removal was necessary due to a
substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the children if the children were returned home, and
concluded there were no reasonable means to protect the children’s physical
health without removal.3
Although the juvenile court recognized that Mother had made progress,
it was concerned with her lack of specificity about how M.S. was injured, as
this made it “very difficult” for her to protect her children from future harm.
The court also referenced the social worker’s recent report in which Mother
expressed she was not ready for the children to return to her custody, and she
was looking for a new place to live with the children. For these reasons, the
court determined it would be detrimental to place the children in her care. It
nonetheless authorized the Agency to permit Mother to have unsupervised
and overnight visits with the children under certain circumstances.
3 Mother does not challenge the juvenile court’s jurisdictional findings as
to either child or its removal order as to M.S.
7
DISCUSSION
Mother’s sole challenge in this appeal is to the juvenile court’s
dispositional order removing L.S. from her custody. She argues the evidence
does not support a finding of substantial danger to L.S. if he were returned to
her custody. She asserts there is no evidence in the record showing she
harmed either of her children, and she claims that other positive equities,
such as her participation in reunification services, weigh in her favor. She
further contends the court erred by failing to consider less drastic
alternatives to L.S.’s removal.
1. Relevant Legal Principles and Standard of Review
“After the juvenile court finds a child to be within its jurisdiction, the
court must conduct a dispositional hearing. [Citation.] At the dispositional
hearing, the court must decide where the child will live while under the
court’s supervision.” (In re N.M. (2011) 197 Cal.App.4th 159, 169 (N.M.).)
“ ‘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. [Citation.]’ ” (Id. at pp. 169–170.) At the
dispositional stage, the court may consider a parent’s past conduct, present
circumstances, and response to the conditions giving rise to the dependency
proceedings. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
To support an order removing a child from parental custody, the
juvenile court must find by clear and convincing evidence that “[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 parent’s . . .
physical custody . . . .” (§ 361, subd. (c)(1).) The court must also determine
8
“whether reasonable efforts were made to prevent or eliminate the need for
removal of the minor” and “state the facts on which the decision to remove
the minor is based.” (§ 361, subd. (e).) “The juvenile court has broad
discretion to determine what would best serve and protect the child’s interest
and to fashion a dispositional order in accordance with this discretion.” (In re
Jose M. (1988) 206 Cal.App.3d 1098, 1103–1104.)
The standard of review for a dispositional order is substantial evidence.
(In re Cole C. (2009) 174 Cal.App.4th 900, 916.) “Substantial evidence is
evidence that is reasonable in nature, credible, and of solid value. We do not
reweigh the evidence, evaluate the credibility of witnesses or resolve
evidentiary conflicts. We draw all legitimate and reasonable inferences in
support of the judgment. The appellant has the burden to demonstrate there
is no evidence of a sufficiently substantial nature to support the findings or
orders. [Citation.]” (In re D.B. (2018) 26 Cal.App.5th 320, 328–329 (D.B.).)
2. Substantial Evidence Supports the Juvenile Court’s Dispositional Findings
Mother contends there was insufficient evidence to support removing
L.S. from her custody because there is no evidence L.S. had ever been abused
or that she had caused M.S.’s injuries. She also points to her demonstrated
progress during the reunification services, and that she had a safe and
suitable home for L.S. She concludes that the record lacks clear and
convincing evidence of a substantial danger to L.S. if he remained in her
custody.
Before addressing the juvenile court’s dispositional order, we pause to
address the jurisdictional findings. Mother contends that jurisdictional
findings may serve as prima evidence for removal only in cases under section
300, subdivision (e), where a young child has suffered severe physical abuse
and is adjudicated a dependent. Because the court took jurisdiction over L.S.
9
under section 300, subdivision (j), Mother contends the presumption does not
apply.
Even assuming the jurisdictional findings would not automatically
constitute prima facie evidence at the dispositional stage under the statute,4
the juvenile court found clear and convincing evidence that L.S. was a
dependent under section 300, subdivision (j). This is a heightened burden of
proof from the preponderance of evidence standard required for taking
jurisdiction over a child. (§§ 300, 355, subd. (a).) Because the court applied
the elevated clear and convincing standard of proof to the jurisdictional
findings, those findings should apply to the dispositional order. (In re Hailey
T. (2012) 212 Cal.App.4th 139, 146 (Hailey T.) [“The elevated [clear and
convincing] burden of proof for removal from the home at the disposition
stage reflects the Legislature’s recognition of the rights of parents to the care,
custody and management of their children, and further reflects an effort to
keep children in their homes where it is safe to do so.”].)
Further, even without the presumption that the jurisdictional findings
are prima facie evidence for removal, Mother has not met her burden on
appeal to demonstrate that there is no substantial evidence to support the
juvenile court’s dispositional findings. Mother relies on Hailey T., in which
the Court of Appeal reversed the dispositional order removing a four-year-old
minor from her parents’ custody after her infant sibling was found with a
nonaccidental injury to one eye. (Hailey T., supra, 212 Cal.App.4th at
4 We note that several appellate courts have applied the statutory
presumption to jurisdictional findings under section 300, subdivision (j),
holding that such findings are prima facie evidence that the child cannot
safely remain in the home. (See D.B., supra, 26 Cal.App.5th at p. 332; In re
T.V. (2013) 217 Cal.App.4th 126, 135; Hailey T., supra, 212 Cal.App.4th at
p. 146.)
10
p. 145.) In Hailey T., there was disputed expert testimony regarding whether
the eye injury was inflicted by the parents or could have been caused by the
minor. (Id. at p. 148.) Additionally, there was no evidence the minor was
ever physically harmed in the parents’ home or had suffered harm because of
the abuse to her sibling. (Id. at pp. 147–148.) There was also evidence to
show the minor would have been capable of reporting any abuse, since she
possessed good language skills, and was outgoing and social. (Id. at p. 147.)
The appellate court also noted that the parents had a “healthy relationship,”
as there was no evidence of any domestic violence between them, and neither
parent had any mental health or other issues that would put the minor at a
continuing risk. (Ibid.) The appellate court concluded that although the
record supported the court’s jurisdictional findings, the record was
insufficient to show a substantial risk of harm to the minor if not removed
from her parents’ custody under the clear and convincing standard of proof.
(Id. at p. 148.)
We are not persuaded that Hailey T. requires reversal of the juvenile
court’s dispositional order in this case. Unlike the eye injury that gave rise to
the dependency proceedings in Hailey T., the abuse to L.S.’s sibling was not
an isolated incident. Rather, M.S. was diagnosed with multiple, serious
injuries, including a lacerated spleen, bruising, scabbing, bite marks,
multiple limb fractures, and a complex skull fracture. These injuries were
indicative of multiple incidents of abuse, as some injuries were in the process
of healing, and one injury was at least 10 days old. In contrast with the
dueling expert testimony presented in Hailey T., the undisputed record in
this case shows that M.S.’s injuries, with the possible exception of the bite
marks, could not have been caused by a child of L.S.’s age. In fact, four child
abuse doctors agreed M.S.’s injuries were highly specific for abuse. As one of
11
these doctors opined, given the severity of M.S.’s condition, failure to remove
him from the environment where he sustained the injuries would place him
at extreme risk of ongoing abuse and potentially death.
In addition to the severity and protracted nature of the abuse inflicted
on his brother, L.S.’s situation is further distinguishable from that of the
minor in Hailey T. because the evidence in the record supports a finding that
L.S. was physically harmed in his parents’ home. L.S.’s paternal relatives
contacted a social worker to report their concerns about returning L.S. to his
parents’ custody, describing both parents as too rough with L.S. for his age,
and that Mother was the more aggressive parent. They observed Mother
physically disciplining L.S. with spankings, and pulling his hair and ears
when he was three years old. This report of abuse to L.S. mirrors to a degree
M.S.’s documented injuries, which included bilateral ear bruising.
There is also evidence to contradict Mother’s assertion that L.S. was
“healthy [and] well cared for” prior to his removal from her custody. Unlike
the minor in Hailey T., who could speak in full sentences at the age of three,
L.S. had a noticeable speech impediment during his first forensic interview,
which made him incapable of providing any details about M.S.’s abuse.
There were numerous reports that L.S. had behavioral problems prior to his
removal from the home, and Mother even acknowledged that L.S. needed
help for his hyperactivity. L.S. was also harmed by witnessing his sibling’s
abuse, stating he felt “mad” and “sad” when M.S. got hurt. Mother’s lack of
attention to, or disregard for, the effect on L.S. of witnessing the abuse of his
brother further supports the removal of L.S. from her care. (D.B., supra, 26
Cal.App.5th at p. 330 [emotional effect of sibling’s abuse was probative in
determining whether the abuse of the sibling presented a substantial risk to
the other child].)
12
Lastly, there is evidence in the record to suggest that Mother was not
yet prepared to provide L.S. with a safe home. Prior to the children’s
removal, the family had been living with an alcoholic relative who had
sexually abused Mother as a child, a decision Mother recognizes created an
unsafe environment for the children. Although at the time of the
dispositional hearing Mother was receiving reunification services and had
made progress, she had not yet completed the program and needed to
improve in the areas of acceptance of responsibility, empathy, and insight.
And unlike the parents in Hailey T., Mother and Father engaged in a
domestic violence dispute, which occurred after the dependency case began
and despite Mother’s participation in services.
Mother further contends the juvenile court erred by failing to
separately assess the risk to L.S. Although the court entered separate
dispositional orders for each child , the oral dispositional findings did not
distinguish between the children individually. We conclude there was no
error in the court’s analysis, and even if there was, any error was harmless.
The requirement for the juvenile court to analyze each child’s
circumstances individually at the dispositional stage was articulated in In re
Dakota J. (2015) 242 Cal.App.4th 619 (Dakota J.). In that case, there was
clear and convincing evidence to support removal of the child who resided
with the mother based on the mother’s failure to provide regular care and
supervision. (Id. at pp. 626–627.) But the juvenile court also ordered
removal of her two other children even though those children did not reside
with the mother when the dependency petitions were initiated. (Ibid.) The
appellate court decided that removal of the children residing outside her
physical custody was error because section 361, subdivision (c)(1) did not
apply to the children who were not in the mother’s physical custody. (Id. at
13
pp. 627–630.) It further determined that the error was not harmless, citing
the mother’s ability to recognize her limitations since she had arranged for
her two other children to live with a family member. (Id. at p. 632.) The
court concluded that “where more than one child is the subject of a
dependency proceeding, the juvenile court must analyze each child’s
circumstances independently at the dispositional stage.” (Id. at p. 632.)
The unique circumstances of Dakota J. are not present in this case.
Unlike Dakota J., where two of the mother’s three children were not in her
physical custody when the dependency proceedings were initiated, Mother
was L.S.’s primary caregiver at the time of M.S.’s hospitalization.
Additionally, the children in Dakota J. were found dependents under section
300, subdivision (b), which provides the juvenile court with jurisdiction over a
child who has suffered or is at risk of suffering serious physical harm based
on the parent’s failure or inability to adequately supervise or protect the
child. (Dakota J., supra, 242 Cal.App.4th at p. 626.) In this case, the
juvenile court took jurisdiction over L.S. under section 300, subdivision (j).
As our Supreme Court has explained, the statutory provision for dependency
jurisdiction based on sibling abuse directly connects the abuse of a sibling to
the other child’s future risk of harm: “[T]he more severe the type of sibling
abuse, the lower the required probability of the child’s experiencing such
abuse to conclude the child is at a substantial risk of abuse or neglect under
section 300. If the sibling abuse is relatively minor, the court might
reasonably find insubstantial a risk the [other] child will be similarly abused;
but as the abuse becomes more serious, it becomes more necessary to protect
the child from even a relatively low probability of that abuse.” (In re I.J.
(2013) 56 Cal.4th 766, 778.) Although the risks posed to the sets of children
14
in Dakota J. may have been distinct, the future risk of harm to L.S. is
necessarily intertwined with the abuse of M.S.
Additionally, we presume the juvenile court is aware of and followed
applicable law. (In re Julian R. (2009) 47 Cal.4th 487, 499.) Generally,
orders will be upheld if the evidence supports implied findings. (In re Andrea
G. (1990) 221 Cal.App.3d 547, 554–555.) As the juvenile court correctly
observed in this case, Mother had yet to identify the perpetrator of M.S.’s
abuse as of the date of the dispositional hearing. At first, Mother blamed L.S.
as the cause of M.S.’s injuries. She then began to suggest Father was
responsible, although she later said he was not to blame and was a “loving
father.” Mother then suggested the maternal step-grandfather was to blame.
She later told her therapist, following the domestic violence dispute, that she
suspected Father again. Based on Mother’s inconsistent stories about who
was responsible for M.S.’s injuries and her inability to identify the source of
the harm, the juvenile court reasonably determined that it would be difficult
for Mother to protect both children from future abuse. Although not
expressly phrased in these terms, the juvenile court effectively found that
Mother’s lack of insight presented a risk of harm to L.S. individually.
Even assuming the juvenile court erred by failing to analyze the risk to
L.S. individually, any such error was harmless. An error by the court in
failing to comply with section 361, subdivision (e) will be deemed harmless if
“ ‘it is not reasonably probable such finding, if made, would have been in
favor of continued parental custody.’ [ Citations.]” (In re Jason L. (1990) 222
Cal.App.3d 1206, 1218.) The undisputed record shows Mother had physically
harmed L.S., she failed to seek help for L.S.’s behavioral problems prior to
the Agency intervening, and L.S. demonstrated improvement after being
removed from her care. Mother was also in the process of developing insight
15
into M.S.’s abuse and had yet to complete her reunification services.
Considering both past and present circumstances, we do not find it was
reasonably probable that a ruling more favorable to Mother would have
occurred if the court had analyzed L.S.’s risk of harm independently.
3. Substantial Evidence Supports the Juvenile Court’s Finding of No
Reasonable Alternatives to L.S.’s Removal
Mother contends the juvenile court failed to consider less drastic
alternatives to removal, instead merely stating in perfunctory language that
there were no reasonable means to place L.S. with Mother. She contends
family maintenance services were a reasonable option the juvenile court
should have considered, as this option would have allowed her to retain
custody while still requiring her participation in services under the social
worker’s supervision.5
In the juvenile court, Mother argued for family maintenance, or in the
alternative, overnight visits.6 The record shows that the court considered
5 To the extent Mother contends the juvenile court failed to consider
alternatives other than family maintenance, she forfeited this argument by
failing to suggest additional options. (In re S.B. (2004) 32 Cal.4th 1287, 1293
[dependency matters are not exempt from forfeiture rule], superseded by
statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953,
961–962; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831 [by only seeking
placement with herself in the trial court, mother waived right on appeal to
contend child should be placed with a relative].)
6 Family maintenance services may be provided if “a child is adjudged a
dependent child of the court, on the ground that the child is a person
described by Section 300, and the court orders that a parent or guardian shall
retain custody of the child subject to the supervision of the social worker,
[and] the parents or guardians shall be required to participate in child
welfare services or services provided by an appropriate agency designated by
the court.” (§ 362, subd. (c).)
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both options, and it ultimately allowed the Agency discretion to permit
unsupervised and overnight visits. However, as to placing L.S. with Mother
in conjunction with family maintenance services, the court concluded it would
be premature for L.S. to return to Mother’s custody. In reaching this
conclusion, it cited the “extremely serious injuries” to M.S., and that Mother
had not yet demonstrated that unsupervised visitation would not result in
injuries. It also referenced Mother’s lack of insight into the circumstances
that caused the children’s removal from her custody, rendering it difficult for
her to protect both children from future abuse. Finally, the judge noted that
Mother had expressed a week before the hearing that she was not yet ready
to receive the children into her home. Contrary to Mother’s assertion, the
record shows the court considered family maintenance, but it determined
that removal was necessary until Mother had sufficient time to develop
insight and could demonstrate through unsupervised visits that L.S. would
be safe if placed in her care.
Mother contends the juvenile court improperly relied on her housing
status, as her limited finances were not legitimate grounds for L.S.’s removal.
However, the evidence in the record supports the juvenile court’s finding
that, as of the date of the dispositional hearing, Mother was not ready to
receive L.S. into her home full-time. In November 2020, Mother began living
with her cousin in a one-bedroom apartment. Yet as of one week before the
hearing, Mother was still unsure whether her cousin would allow the
children to live with them, and Mother told the social worker she wanted to
move before reunifying with the children. Although Mother’s stipulated
testimony was that her cousin had given permission for the children to live
with her while she looked for a new home, the juvenile court could have been
concerned with Mother’s lack of foresight, as she had failed to secure housing
17
for her children as of one week prior to the hearing. Housing insecurity had
been a problem for Mother in the past, since she had previously chosen to
move with the children into the home of their maternal step-grandfather,
despite his alcoholism and history of sexual abuse. Based on this record, it
was reasonable for the court to conclude that family maintenance was not a
safe option for L.S.
Mother’s attempt to analogize to In re Ashly F. (2014) 225 Cal.App.4th
803 (Ashly F.) is also unpersuasive. There, the mother inflicted physical
abuse on two children, of which the father was largely unaware. (Id. at
p. 806.) The Court of Appeal reversed the dispositional order, concluding
there was ample evidence that the children could be protected without
removing them from the family home. (Id. at pp. 810–811.) The court
focused on the mother’s remorse and acceptance of responsibility, and that
both parents had enrolled and parenting classes. (Id. at p. 810.) It concluded
that reasonable alternatives to the removal existed, which included
removing the mother as the abusive parent from the home. (Ibid.)
Unlike Ashly F., where one parent was unaware of the abuse inflicted
by the other parent, the juvenile court here determined that given the nature
of M.S.’s injuries, Mother should have at least been aware of the abuse.
Additionally, given the severity of M.S.’s injuries and Mother’s lack of insight
into how the injuries occurred, the court was justifiably concerned that L.S.
and his sibling faced an ongoing threat of harm if returned to Mother’s
custody. It identified the facts on which the decision to remove L.S. was
based, and substantial evidence supports the finding that alternative
measures were not a viable option at the time of the dispositional hearing.
(Cf. Ashly F., supra, 225 Cal.App.4th at p. 810 [court erred by failing to state
the facts supporting its conclusion].)
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Lastly, any error by the juvenile court in failing to address reasonable
alternatives to L.S.’s removal was harmless. As of one week before the
dispositional hearing, Mother had failed to make housing arrangements for
the children, and she herself expressed anxiety about receiving the children
into her home. Mother also needed to develop insight and responsibility for
the risks she created to the children’s safety. Based on these circumstances,
it is not reasonably probable that the court would have concluded there were
reasonable alternatives to removal. (In re D’Anthony D. (2014) 230
Cal.App.4th 292, 304.)
DISPOSITION
The juvenile court’s orders and findings are affirmed.
DATO, J.
WE CONCUR:
O'ROURKE, Acting P. J.
IRION, J.
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