In re L.L. CA4/1 ( 2024 )

Filed 7/31/24 In re L.L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re L.L., a Person Coming Under D083537
the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH (Super. Ct. No. J521208)
AND HUMAN SERVICES
AGENCY,
Plaintiff and Respondent,
v.
A.L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Marissa A. Bejarano, Judge. Affirmed.
Robert McLaughlin, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa Maldonado, Chief Deputy
County Counsel, Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
Then three-month-old L.L. became a dependent of the juvenile court
because of physical abuse by her mother, A.L. (Mother). At the six-month
review hearing, the juvenile court placed L.L. with D.L. (Father) and found
L.L. would suffer detriment if returned to Mother’s care. On appeal, Mother
contends the court’s detriment finding was not supported by substantial
evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Leading to the Dependency Case
In early 2023,1 Mother shook newborn L.L. on multiple occasions. On
one occasion, she took L.L. out of her car seat and shook her strongly because
she was crying. On another occasion, Mother shook L.L. and slapped her
across the face because she was crying while the parents argued. Then, the
parents were on a video call when Mother tossed L.L. two to three feet across
a bed, causing L.L. to turn 180-degrees, and hit her head on a cell phone.
Toward the end of March, Father informed Mother he wished to end
their relationship.2 In response, Mother screamed and ripped out her own
hair, and she repeatedly expressed a desire to commit suicide. Father took
Mother to the hospital where Mother admitted to hospital staff that she
shook and threw L.L.
Following the advice of hospital staff, Father took three-month-old L.L.
to the hospital. Father reported that Mother shook L.L. several times over a
period of weeks and that he believed Mother was overwhelmed in caring for
L.L. He reported Mother was also abusive toward him and that L.L. was
present during some of their physical altercations.
1 All undesignated date references are to 2023.
2 Father is not a party to this appeal and will only be referenced when
necessary.
2
Hospital staff reported that Mother had symptoms of anxiety,
depression, self-harm, and impulsive behaviors. Mother’s abuse of L.L.,
however, was not directly caused by mental illness, but rather by her
impulsivity and poor decision making when facing psychosocial stressors.
Mother reported that she did not take L.L. to the hospital because she
believed L.L. was “fine.” She nevertheless acknowledged that she shook L.L.
after losing control of her emotions and that she felt unsafe around L.L.
because she worried her behaviors could recur.
B. The Agency’s Petition and Detention Hearing
In early April, the San Diego County Health and Human Services
Agency (Agency) filed a petition on L.L.’s behalf due to Mother’s mental
health and physical abuse and detained L.L. in a licensed foster home.
At the detention hearing, the juvenile court appointed counsel for the
parents and for L.L. The court found L.L.’s petition met prima facie
requirements and detained her in out-of-home care. It ordered supervised
visits for the parents and vested the Agency with discretion to expand their
visitation.
C. The Agency’s Jurisdiction-Disposition Report
At the end of April, the Agency reported that Mother took
accountability for the facts underlying L.L.’s petition, although she denied
she shook L.L. more than once. She claimed that she shook L.L. due to
feeling frustrated with Father. After L.L.’s birth, she started acting
aggressively toward Father because she felt she was solely responsible for the
home and L.L.’s care. In response, Father sought childcare for L.L. and
obtained a restraining order against Mother.
Mother reported she was being treated by a psychologist and a
psychiatrist. While her psychologist mentioned postpartum depression, she
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had diagnoses of depression and anxiety. The social worker encouraged
Mother to speak to her primary care provider about postpartum depression.
Mother was not on medication and did not want to take medication.
Mother’s case plan included participation in domestic violence and child
abuse groups, as well as a parenting education program. It also
recommended that she attend all mental health appointments and comply
with her provider’s recommendations.
D. Jurisdiction-Disposition Hearing
At the jurisdiction-disposition hearing, the Agency reported it had
detained L.L. with a maternal great-aunt. The court found L.L.’s petition
true and set disposition for trial.
At the contested disposition hearing in May, Father informed the
juvenile court that he had withdrawn his restraining order against Mother.
The court removed L.L. from the parents, placed her with the maternal great-
aunt, and vested the Agency with discretion to allow the parents to visit
together.
The Agency’s addendum report noted L.L. adjusted well to the
maternal great-aunt’s care. Mother visited L.L. five times per week for six
hours each visit. The Agency expanded Mother’s visits to unsupervised
visits.
E. The Agency’s Six-Month Review Report and the Initial Hearing
The Agency’s November report in advance of the six-month review
hearing noted both parents had completed a parenting education program.
Mother received daily support from the maternal grandfather, who lived next
to her.
The Agency had concerns about Mother harassing Father during the
reporting period. She called and texted him incessantly despite his request
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that she stop. In July, he filed for a temporary protective order against
Mother, and she did not contact him when it was in effect. A couple weeks
later, however, Father terminated the protective order and the parents
reengaged in communication.
The social worker advised Mother to focus on L.L. during her visits
instead of calling Father. Despite this, Mother called Father during a
September visit and was dishonest about her failure to follow the social
worker’s advice. Otherwise, her visits with L.L. were successful and she
actively engaged with L.L. and attended to her needs. The Agency initially
referred Mother for coaching because she struggled to feed L.L. during visits.
Her coach gave her positive reports, and Mother researched recipes and
provided L.L. with homemade food.
In October, Father filed a report with the police department claiming
that Mother continued to harass him. Mother acknowledged she called and
harassed Father until he “bl[e]w[ ] up” at her. The social worker expressed
concern that Mother focused on Father instead of reunifying with L.L.
Mother acknowledged that her decision making was irrational and that she
distanced herself from her reunification goals when she engaged with Father.
The Agency recommended that the parents receive reunification
services to the 12-month review hearing date. In making this
recommendation, the Agency wanted Mother to progress in her child abuse
classes and to demonstrate more insight about the incidents that caused
L.L.’s removal.
At the six-month review hearing in November, Father set the matter
for trial. Mother submitted on the Agency’s recommendations and did not
join in Father’s trial set.
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F. The Agency’s Addendum Reports
The Agency’s addendum report noted concerns about the parents’
contact during the reporting period. On one day in December, Mother called
Father 14 times, while he called her seven times. Mother told the social
worker that L.L. accidentally called Father on Mother’s tablet during a visit.
Later, Mother admitted this was a lie and that she had facilitated Father’s
video visit with L.L.
As of November, Mother self-reported enrolling in an additional
parenting class. She also began overnight visits at her home. She admitted
facilitating video calls between L.L. and Father during her own visitation
time. When asked why she went against the social worker’s advice, Mother
reported she did not believe she would get caught. Mother changed her
phone number at the social worker’s request.
The social worker informed the parents that the Agency intended to
recommend no contact between them. She was concerned about the parents’
lack of boundaries with each other, and she wanted them to learn how to
successfully coparent.
In a subsequent addendum report, the Agency noted that Mother’s
overnight visits occurred without issue. She reported she kept her contact
information confidential from Father. The Agency confirmed its prior
recommendation, but additionally recommended that both parents receive
overnight visits. It still had concerns about the parents’ lack of coparenting
skills. They had not demonstrated an ability to communicate in a healthy
manner, which called into question their ability to resolve parenting-related
issues.
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G. Contested Six-Month Review Hearing
At the January 2024 contested six-month review hearing, the parents
were present. The juvenile court received the Agency’s reports into evidence.
Mother’s providers reported that she made good progress in her
services. None of them recommended that she undergo further psychological
assessments or treatments. Mother also never cancelled a visit due to her
mental health. Mother argued that L.L. would not be placed at substantial
risk of detriment if returned to her care.
The social worker believed the parents continued to focus on conflict
within their relationship. Before recommending placement, she wanted them
to instead focus on L.L.’s needs. L.L. was at risk of future harm until the
parents moved on from issues within their relationship.
L.L.’s attorney agreed with the Agency’s recommendations. She argued
L.L. would be placed at substantial risk of detriment if returned to the care of
either parent.
H. The Court’s Ruling
In January 2024, the juvenile court concluded that return of L.L. to
Mother would create a substantial risk of detriment to her safety, protection,
and/or physical or emotional well-being.
The court further found that return of L.L. to Father would not create a
substantial risk of detriment to L.L. The court ordered that L.L. be placed in
Father’s care, with Mother’s overnight and unsupervised visitation to be
arranged in a child and family team meeting. The court also ordered no
contact between the parents, except when they communicated through a
parenting application, and that the parents participate in mediation. It
continued its jurisdiction and ordered further services for the parents.
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DISCUSSION
I.
Relevant Legal Principles
When the juvenile court has found jurisdiction under section 300, it
may remove a child from a parent pursuant to section 361 at a dispositional
hearing only if it finds by 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 parents.” (§ 361,
subd. (c)(1); see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248
(Cynthia D.) [“At the dispositional hearing, the standard of proof for removal
from a custodial parent is clear and convincing evidence.”].)
In contrast, at the six-month review hearing, there is a statutory
presumption that the child will be returned to parental custody “unless the
court finds, by a preponderance of the evidence, that the return of the child to
[his or her] parent or legal guardian would create a substantial risk of
detriment to the safety, protection, or physical or emotional well-being of the
child.” (§ 366.21, subd. (e)(1); In re Mary B. (2013) 218 Cal.App.4th 1474,
1483 (Mary B.).) The Agency, not the parent, bears the burden of
establishing that detriment. (Cynthia D., supra, 5 Cal.4th at pp. 248−249.)
Proof by a preponderance standard at this stage sufficiently protects a
parent’s due process rights because, as our Supreme Court has explained, the
statutory scheme requires the juvenile court to have previously made a
finding of detriment by clear and convincing evidence. (Cynthia D., at
pp. 253−256.)
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“In evaluating detriment, the juvenile court must consider the extent to
which the parent participated in reunification services” and “efforts or
progress the parent has made toward eliminating the conditions that led to
the child’s out-of-home placement.” (In re Yvonne W. (2008) 165 Cal.App.4th
1394, 1400.) The juvenile court “shall consider the efforts or progress, or
both, demonstrated by the parent . . . and the extent to which they availed
themselves of services provided . . . .” (§ 366.21, subd. (e)(1).)
A juvenile court may find it is detrimental to return the child to the
parent even if the parent has complied with the reunification case plan. (See
Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704−711
[concluding that, although Mother had completed her program, reports by
mental health and medical professionals and social worker supported the
finding that returning the minors to Mother would be a substantial detriment
to them]; In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143 [holding that
therapy attendance and visiting the children were not determinative, and
that “[t]he court must also consider the parents’ progress and their capacity
to meet the objectives of the plan”]; Ibid.; In re Jonathan R. (1989)
211 Cal.App.3d 1214, 1221 [“a finding that improvements in [a] parent[’]s
circumstances outweigh the failures during reunification does not guarantee
return of the child to the parents”].) The juvenile court may consider the
parent’s past conduct as well as present circumstances (In re Troy D. (1989)
215 Cal.App.3d 889, 900), and is permitted to consider a parent’s denial of the
protective issues when evaluating detriment in returning a child to parental
custody (Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 865−868
(Georgeanne G.)). “It is for the [juvenile] court to weigh [evidence of present
circumstances] against the evidence of the parents’ efforts, accomplishments,
and failures during the reunification period.” (In re Jonathan R., at p. 1221.)
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“We review the juvenile court’s finding of detriment for substantial
evidence. [Citations.] Under that standard we inquire whether the evidence,
contradicted or uncontradicted, supports the court’s determination.”
(Georgeanne G., supra, 53 Cal.App.5th at pp. 864–865; see Mary B., supra,
218 Cal.App.4th at p. 1483.) “ ‘ “[W]e draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court; we
review the record in the light most favorable to the court’s determinations;
and we note that issues of fact and credibility are the province of the trial
court.” ’ [Citation.] ‘ “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are sufficient facts to
support the findings of the trial court.” ’ ” (In re I.J. (2013) 56 Cal.4th 766,
773.)
II.
Substantial Evidence Supports the Court’s Finding of Detriment
Mother contends that the juvenile court’s finding at the six-month
review hearing that it would be detrimental to return L.L. to her custody is
not supported by substantial evidence. We disagree. On this record, there
was substantial evidence to support the court’s finding of detriment.
Here, the court found it would be detrimental to L.L. to return her to
Mother’s custody at the six-month review hearing because jurisdiction was
“first based” on “Mother’s physical abuse” to L.L., Mother was only halfway
through her domestic violence group sessions, she “minimiz[ed] the harm”
she caused to L.L. and she “continue[d] to lack insight into the protective
issue as evidenced not only from the statements of the provider but the
Mother, herself.” She also became “upset” when communicating with Father
and, “until recently, the parents have continued to engage[ ] in verbal
altercations via telephone, which . . . was the last setting that led . . . Mother
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to shake and throw [L.L.] onto the bed.” Substantial evidence supported
these findings.
The record before the juvenile court at the time of the six-month review
hearing revealed that Mother had attended 16 child abuse classes and missed
six classes. She had 36 classes remaining and had already “reached the
maximum number of absences she can have in the program.” She scored a 3
in the areas of empathy and insight, which stands for “sometimes” in the
rating scale. She “need[ed] improvement in understanding the fear and
trauma the abuse causes and showing insight concerning abusiveness and its
effects on partner and children.” The instructor was still working with her on
empathy, insight, minimization, and denial.
Mother also completed only half of her domestic violence treatment
classes, which was significant because the parents’ domestic violence
dynamic precipitated Mother’s physical abuse. For example, L.L. cried
because the parents were arguing, which caused Mother to shake L.L. and
slap her across the face. On another occasion, Mother tossed L.L. after she
screamed at Father on the phone. Mother also slapped Father while he held
L.L. on several occasions. The court was correct to consider how much
“progress” Mother made in her treatment program when determining
whether it would be detrimental to return L.L. to Mother’s custody.
(§ 366.21, subd. (e)(1).)
Additionally, the Agency was aligned with the child abuse instructor’s
assessment that Mother “continue[d] to minimize the incident that brought
[L.L.] into care.” Although Mother accepted that she threw and shook L.L.,
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she stated “ ‘nothing happened’ ” to L.L.3 She also reported that her actions
constituted an involuntary response to the stress she felt in dealing with
Father. Mother’s minimization of the protective issues further supported the
court’s finding there is detriment in returning L.L. to her custody. (See
Georgeanne G., supra, 53 Cal.App.5th at pp. 865–868.)
It is Mother’s burden to affirmatively demonstrate the juvenile court’s
order was not supported by substantial evidence (In re J.F. (2019)
39 Cal.App.5th 70, 79), but her arguments on appeal—that she “excelled in
all aspects of her case plan,” that her interaction with L.L. was “uniformly
positive,” and that the “parents’ termination of their relationship allayed any
remaining concerns about” L.L.’s safety—are not adequate to carry that
burden. Mother overlooks that under the substantial evidence standard of
review, we do not disturb the court’s findings if it is supported by substantial
evidence, “even though substantial evidence to the contrary also exists and
the [juvenile] court might have reached a different result had it believed
other evidence.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 230.)
Moreover, we do not agree with Mother that the parents’ relationship
no longer poses a concern for L.L.’s safety. During the case, Mother contacted
Father in hopes of reinstating their romantic relationship. She was
sometimes dishonest about her contact with him and used her visitation time
to call him despite being advised not to do so. The parents remained in
contact until less than two months before the contested hearing. They
reignited contact with each other after Father obtained protective orders
against Mother or changed his phone number to prevent her from contacting
3 Meanwhile, a child protection doctor noted that shaking an infant could
cause the infant to suffer brain injuries, intracranial hemorrhages, retinal
hemorrhages, seizures, apnea, coma, and, in severe cases, death.
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him. This caused the social worker to question whether the parents’
cessation of contact would last.
For support, Mother cites Georgeanne G., supra, 53 Cal.App.5th at
pp. 865–869, Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca
P.) and M.G. v. Superior Court (2020) 46 Cal.App.5th 646 (M.G.), but none of
those cases demonstrates that the court erred in this case. In Georgeanne G.,
the court rejected the parent’s claim that “lack of insight is not a valid ground
for finding [the child’s] return to [the parent’s] home would create a
substantial risk of detriment to [the child’s] safety or physical or emotional
well-being.” (Georgeanne G., at p. 865.) After discussing several cases,
including Blanca P., the court concluded that “[n]one of these cases holds a
parent’s lack of insight may not be considered by the juvenile court,” so long
as the evaluation of the parent’s insight is “ ‘based on evidence rather than an
emotional response.’ ” (Georgeanne G., at p. 867, citing Blanca P., at p. 1750.)
In M.G, the court “based its concerns on a hunch that was not supported by
any evidence.” (M.G., at p. 662.) The Agency there also “failed to articulate
specific reasons why or how the child[ ] would be at risk if placed in Mother’s
. . . care.” (Cf. id. at pp. 661–662.)
We reject Mother’s contention that the juvenile court’s findings and
order were based on speculation, conjecture, or unreasonable inferences.
(Cf. Georgeanne G., supra, 53 Cal.App.5th at pp. 868–869; Blanca P., supra,
45 Cal.App.4th at pp. 1750–1751; M.G., supra, 46 Cal.App.5th at pp. 661–
662.) Instead, the evidence showed that Mother’s repeated pattern of
engaging in domestic violence precluded her from protecting L.L. and placing
L.L.’s needs above her own. The evidence also established that Mother had
not made sufficient progress in her case plan to substantially lessen this risk.
She also failed to gain adequate insight into the issues that placed L.L. in
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danger, and the court found this failure led to a risk of harm to L.L. These
facts are substantial evidence to support the juvenile court’s detriment
finding at the six-month review hearing. (§ 366.21, subd. (e)(1); Georgeanne
G., supra, 53 Cal.App.5th at pp. 865–869.) Accordingly, we affirm the court’s
decision.
DISPOSITION
The juvenile court’s findings and orders of January 29, 2024, are
affirmed.
KELETY, J.
WE CONCUR:
BUCHANAN, Acting P. J.
RUBIN, J.
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