In re E.P. CA4/1 ( 2024 )

Filed 6/6/24 In re E.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re E.P. et al., Persons Coming
Under the Juvenile Court Law.
D083511
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. Nos. J521312A-C)
Plaintiff and Respondent,
v.
L.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Marissa A. Bejarano, Judge. Affirmed.
Richard Pfeiffer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
Counsel, and Elisa Molk, Deputy County Counsel, for Plaintiff and
Respondent.
L.P. (Mother) appeals from the juvenile court’s January 17, 2024
dispositional order removing three of her five children (the Children)
pursuant to Welfare and Institutions Code1 section 361, subdivision (c). She
contends the removal of E.P., P.P., and A.G. (then ages 13, 12, and 11) was
not supported by sufficient evidence and there were other reasonable means
to protect the Children. She also asserts minors’ counsel failed to advise the
court of the Children’s wishes.
We conclude substantial evidence supports the order, and minors’
counsel adequately advised the court of the Children’s wishes. Accordingly,
we affirm.
REVELANT FACTUAL AND PROCEDURAL BACKGROUND.2
A. Detention Report dated October 4, 2023
On September 29, 2023, the San Diego County Health and Human
Services Agency (Agency) received information that E.P. had several bruises
and gashes on her arm. E.P. reported Mother had been “ ‘hitting her almost
every day,’ ” had thrown pieces of wood and a hammer toward her, and E.P.
had tried to protect her younger sisters. P.P. and A.G. “ ‘corroborated’ ” the
information provided by E.P. and expressed fear of going home. The Children
were detained and transported to Polinsky Children’s Center (PCC).
Mother also has nine-month-old twins (the twins), whose father
committed suicide in June 2023. The San Diego Police Department
1 All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2 We limit the factual and procedural background to issues raised in
Mother’s appeal. The Children’s father resides in Mexico and did not request
custody of the children or appeal the juvenile court’s order.
2
conducted a welfare check and did not have any concerns with Mother’s care
of the twins.
On October 2, 2023, a social worker interviewed the Children at PCC.
E.P. reiterated that Mother hit her multiple times per week and explained
the fading bruise on her arm was from Mother hitting her with a belt using
both the buckle and leather part. She also reported Mother throwing things
at her and her siblings; one time, Mother threw a scooter at P.P., hitting her
in the head and causing it to bleed. E.P. said that Mother blames her for the
suicide of the twins’ father. E.P. felt “guilty and sad” for telling him she
wanted him “ ‘to leave and be gone,’ ” but she had only meant that she didn’t
want him to live with them.
P.P. was in tears and declined to speak with the social worker.
A.G. reported that Mother hits her and had recently pinched her
because she didn’t clean the bathroom floors, leaving a mark on the top of her
right hand. A.G. also said Mother hits E.P. “the most” and would call E.P. a
“ ‘pig’ ” because she didn’t clean or listen. The last time Mother hit E.P., A.G.
closed her eyes to avoid seeing it and heard “ ‘glass breaking’ ” and things
being thrown around.
The social worker also interviewed Mother, who denied inflicting the
marks found on the Children and suggested the marks on E.P.’s arm were
self-inflicted and the marks on A.G.’s hand were caused by her sister P.P.
pinching her. According to Mother, the Children were “ ‘over exaggerating,’ ”
“ ‘manipulative,’ ” and “ ‘lying.’ ” She explained that E.P. manipulates A.G.
and P.P. to say and do what she wants and believed the Children were mad
at her for having another baby and threatening to send them to live with
their father in Mexico.
3
Mother denied hitting the Children multiple times a week but admitted
to “ ‘spanking’ ” the children for not listening up to three times in the past
using a belt on their buttocks with their clothes on. She told the social
worker that if the Children were truly fearful of her, her home would be
“ ‘cleaner’ ” because they would make sure they listened.
Mother also denied blaming E.P. for her partner’s suicide and thought
that E.P. engaged in self-harm because of the stress of losing him and
because she was being bullied at school. In addition to cutting herself, E.P.
had made statements about harming herself, animals, and her younger
siblings, but Mother had not been able to secure mental health services for
her. Although she took E.P. to the county mental health hospital, E.P. was
unwilling to complete the intake. Mother was not open to medications but
had reached out E.P.’s school and placed E.P. on a waiting list for mental
health services on weekends.
B. Dependency Petitions and Detention
On October 3, 2023, the Agency filed dependency petitions (petitions)
alleging Mother engaged in excessive discipline that subjected E.P. and A.G.
to serious physical harm or substantial risk of serious physical harm (§ 300,
subd. (a)), and as a result, subjected P.P. to substantial risk of abuse or
neglect (§ 300, subd. (j)).
The following day, the juvenile court ordered the children detained at
PCC but gave the Agency discretion to move the children to the home of an
approved relative or extended family member and permitted liberal
supervised visitation with Mother. It also ordered voluntary services,
including case management, counseling, transportation and parent training,
to effectuate reunification.
4
C. Jurisdiction/Disposition Report dated October 31, 2023
On October 5, 2023, the Children moved into their maternal aunt and
uncle’s home. Mother continued to blame the Children and deny any
wrongdoing but started taking parenting classes, had scheduled an intake to
begin child abuse classes, and was on a waitlist to receive grief counseling.
E.P. continued to feel unsafe and was not willing to visit with Mother.
A.G. was doing well and felt happier in her maternal aunt’s care, and she
vacillated between wanting to see Mother and the twins to not wanting to
visit with them. P.P. was still not ready to be interviewed by the social
worker. The maternal aunt reported P.P. was doing well and appeared
happy and wanted to visit with Mother and the twins.
The Agency recommended that the court make a true finding on the
allegations in the petitions, declare the Children dependents of the juvenile
court and place the Children in the approved relative home, offer Mother
reunification services and supervised visits.
At the outset of the October 31, 2023 hearing, the juvenile court held a
Marsden hearing3 and denied Mother’s motion to replace her appointed
counsel. Minor’s counsel then informed the juvenile court that all three
children wanted to continue to be placed with their maternal aunt and had
requested additional clothing. Mother had purchased clothing for the
Children, but they didn’t like the colors or style, and Mother was in the
process of moving and had packed up the Children’s old clothing.
The juvenile court ordered the Agency to provide the Children with
additional clothing and to hold an emergency child family and team meeting
3 People v. Marsden (1970) 2 Cal.3d 118.
5
to address visitation, mental health services, additional clothing for the
children, and P.P.’s asthma. The court scheduled a pretrial hearing for
January 9, 2024, followed by the contested jurisdiction and disposition
hearing on January 17, 2024.
D. Addendum reports dated January 9, 2024 and January 17, 2024
In mid-November, the Children began working with a therapist, and
P.P. and A.G. began supervised visits with Mother. P.P. and A.G. attended
the visits and seemed to enjoy them, but E.P. continued to refuse any contact
with Mother.
On November 27, 2023, the caregiver informed the social worker that
P.P. and A.G. reported seeing changes in Mother. They felt she was “ ‘nicer’ ”
and asked about overnights or return to Mother. The social worker noted
that as “a good sign” and would review Mother’s services to ensure she was
making the necessary changes to expand visitation.
After a visit on December 26, 2023, Mother informed the supervising
social worker that P.P. had told her that E.P. was cutting herself at night.
The caregiver reported that she had not seen any new marks on E.P. to
indicate she was cutting. Two days later, the assigned social worker took
photos of E.P.’s arms, noted that the scars did not appear recent, and
interviewed each of the Children privately. E.P. denied cutting since she left
Mother’s home, P.P. wasn’t sure if she told Mother E.P. was recently cutting
herself, A.G. had not seen E.P. cutting and did not see any new cuts since the
Children had been with the caregivers.
The social worker also asked the Children about visitation. P.P. and
A.G. had expressed that they would like to return to Mother’s care. P.P. felt
Mother had changed, noting her “ ‘voice is not how it used to be.’ ” P.P. felt
safe with Mother and had not experienced what her sisters experienced; she
6
listened to Mother and was not yelled at or disciplined. A.G. wanted to
return to Mother’s care because she felt Mother was doing well and had
assured her that “ ‘things won’t be like before.’ ” E.P., on the other hand, told
the social worker that she was still not ready to see or speak with Mother.
Mother reported she was participating in a child abuse group,
parenting classes, individual therapy, DV classes, and virtual suicide loss
survivors’ grieving groups. Mother also submitted five letters of support, four
from her friends and one from the board president of Uplift homeless
ministry, expressing that they had always observed Mother being loving and
attentive toward the Children.
On January 16, 2024, the caregiver notified the social worker that E.P.
had participated in her first visit with Mother.
The social worker had not yet received any updates or reports from
Mother’s service providers and found Mother’s progress to be minimal. The
Agency recommended the juvenile court find the allegations in the petitions
true and order removal of the Children from Mother’s custody with continued
supervised visitation. The Agency’s case plan included potential
reunification at the end of April, 2024 and recommended that Mother
continue to receive individual and grief counseling, successfully complete
parenting education, continue to participate in the child abuse group to
address the use of physical discipline.
E. Contested jurisdiction/disposition hearing
The jurisdiction/disposition hearing was held on January 17, 2024.
After the Agency reports and attachments were admitted into evidence
without objection and the parties waived cross-examination of the social
worker, three witnesses testified on Mother’s behalf. The Children’s
maternal grandmother testified that she cared for the Children while Mother
7
was working and would leave when Mother returned. She never witnessed
her daughter neglect, abuse, or physically hurt the Children. She specifically
testified that she never saw her daughter get frustrated with the Children,
throw objects at them, or hit them with a belt or other object. She only once
observed a bruise on one of her granddaughters, who said the cat had
scratched her.
Mr. Sandoval (Sandoval) testified he had known Mother for
approximately two years and provided her with moral support after she lost
her partner to suicide. In addition to speaking with Mother on the phone
almost daily, Sandoval visited the family’s home on three occasions and
helped care for the twins. He described E.P. as a rebellious teenager who did
not listen to Mother and manipulated and controlled her younger sisters, and
described Mother as a struggling single mom who was doing her best while
going to school and working to provide for her family.
Sandoval observed that P.P. and A.G. always listened to Mother, while
E.P. responded negatively by not doing what she was told, rolling her eyes,
grunting, walking away, or throwing things. He witnessed Mother respond
with patience despite her disappointment. He had never heard Mother raise
her voice, neglect, or abuse the Children.
Mother also testified. She explained that she and the Children had
been significantly impacted by her partner’s suicide. In addition to her grief,
caring for the twins was difficult without the help of her partner, and the
children didn’t like helping with the twins or doing chores.
Before her partner passed away, Mother would physically discipline the
Children by spanking their behinds with a belt over their clothes. She
stopped physically disciplining the Children because it wasn’t working and
began experimenting with other methods of discipline such as having the
8
Children stand still and reflect on their behavior until they apologized. She
denied abusing the Children or that her physical discipline was excessive.
She also denied throwing a scooter at P.P. and throwing a hammer or piece of
wood at E.P.
She testified that the Children physically fought with each other by
pulling hair, pinching, punching, and kicking. Mother would separate them,
but their fighting sometimes resulted in marks. Approximately one week
before the Children were detained, Mother noticed marks on E.P.’s arms that
were indicative of self-harm. When she asked if they were self-inflicted, E.P.
said she was scratching herself. Mother suggested E.P. talk with someone,
but E.P. didn’t want to and had previously refused mental health services.
Mother expressed continued concern for E.P.’s mental health and had
requested a mental health evaluation. She was open to the Children
attending therapy and taking medication should it be prescribed.
Mother was also taking parenting classes and child abuse classes. She
had taken approximately eight child abuse classes over the past two months.
The classes were nearing completion, but there had been no mention of
physical abuse. Mother was learning how to effectively speak to children to
avoid blaming or overwhelming them. She was “still learning how to deal
with preteens” and described her conflict negotiation skills as “not good.”
F. Juvenile court’s ruling
At the conclusion of the contested jurisdictional and disposition
hearing, the juvenile court found the allegations in the petitions true,
declared the Children to be dependents of the juvenile court, ordered
removal, and continued placement in their maternal aunt’s home.
The court found Mother’s statements denying the abuse were not
credible while finding the Children’s reports of the history of repeated
9
physical abuse and the injuries inflicted by Mother leading to the Children’s
detention were credible. The court found by clear and convincing evidence
that removal from Mother was necessary and concluded there is or would be
a substantial danger to the physical health, safety, protection or physical or
emotional well-being of the Children if they were returned home.
The court further found there were no reasonable means by which the
Children’s physical and emotional health could be protected short of their
removal from Mother’s custody. The court considered Mother’s suggestions of
family therapy and unannounced visits but did not believe those means could
adequately protect the Children as “the abuse had been ongoing and was
happening nearly daily.”
The court ordered liberal supervised visits with both parents,
12 months of family reunification services, and scheduled the six- and
12-month review hearings.
Mother filed a timely appeal.
DISCUSSION
A. Standard of Review
Section 361, subdivision (c)(1) provides a child may not be taken from
the custody of his or her parents unless the juvenile court finds 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 minor’s parent’s . . . physical custody.”
When reviewing a dispositional order made by the juvenile court
pursuant to the clear and convincing standard, the appellate court must
determine if it is supported by substantial evidence while “ ‘bearing in mind
10
the heightened burden of proof’ ” in the court below. (In re Hailey T. (2012)
212 Cal.App.4th 139, 146 (Hailey T.).) The question before us is not whether
we regard the evidence supporting the court’s order is clear and convincing;
“it is whether a reasonable trier of fact could have regarded the evidence as
satisfying this standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th
989, 1009 (Conservatorship of O.B.).) We view the record in the light most
favorable to the juvenile court’s order and indulge in reasonable inferences
that the juvenile court might have drawn from the evidence.
(Conservatorship of O.B., supra, 9 Cal.5th at pp. 1008–1009.) We must accept
the juvenile court’s resolution of conflicting evidence, and we may not insert
our own views regarding the credibility of witnesses in place of the
assessments conveyed by the judgment. (Ibid.)
B. Substantial Evidence Supports the Juvenile Court’s Finding
of Substantial Danger to the Children
Mother claims the trial court’s dispositional order should be reversed
“[b]ecause the juvenile court failed to see the changes in Mother, and instead
used facts as they existed at the time of the filing of the petition instead of
facts at the time of the jurisdiction/disposition hearing.” Mother fails to
recognize the juvenile court may properly consider “parents’ past conduct as
well as present circumstances.” (In re Cole (2009) 174 Cal.App.4th 900, 917
(Cole).) Mother did not satisfy her burden on appeal to show “there is no
evidence of a sufficiently substantial nature to support the court’s findings or
orders.” (Hailey T., supra, 212 Cal.App.4th at p. 147.) Mother’s own
testimony, along with the additional evidence contained in the Agency’s
reports, including the October 4, 2023 detention report, the October 31, 2023
jurisdiction/disposition report, and the two addendum reports dated
11
January 9, 2024 and January 17, 2024, constitute substantial evidence
supporting the removal order.
Mother admitted that she physically disciplined the Children by
spanking their behinds with a belt over their clothes., and the Agency’s
reports contain detailed information of Mother’s pattern of repeated abuse
that posed a substantial danger to the Children’s physical safety and
well-being. Although Mother testified that she had stopped using physical
discipline because “it didn’t work” and had suggested the Children
themselves had inflicted the marks observed, the court found Mother was not
credible. We defer to the juvenile court’s credibility determinations, and the
juvenile court properly concluded the evidence satisfied the clear and
convincing standard of proof. (See Conservatorship of O.B., supra, 9 Cal.5th
at pp. 1008–1009.)
Even if we were to accept Mother’s argument that she only physically
abused the children in the past, “case law has long construed section 361 as
allowing removal where ‘return of the child would create a substantial risk of
detriment to the child’s physical or emotional well-being” and that California
Rules of Court, rule 5.695(d)(1) confirms that construction. (In re H.E. (2008)
169 Cal.App.4th 710, 719; see also In re Marilyn H. (1993) 5 Cal.4th 295,
302.) The focus of the removal statute is to avert harm to the child. (In re
Jamie M. (1982) 134 Cal.App.3d 530, 536; see also Cole C., supra,174 Cal.App.4th at p. 917 [“The parent need not be dangerous and the child
need not have been actually harmed for removal to be appropriate”].)
Although Mother was still engaged in services at the time of the
dispositional hearing and her two younger daughters observed she was
“ ‘nicer’ ” and requested overnight visits, she was still early in the process. It
had been less than four months since the Children had been initially
12
detained, and Mother had not acknowledged that her communication and
disciplinary methods were harmful to the Children. (See Cole C., supra,174 Cal.App.4th at p. 918 [child not safe in mother’s care until she
“acknowledged the inappropriate nature of her parenting and disciplinary
methods”].)
Substantial evidence supports the juvenile court’s order, and it will not
be disturbed on appeal.
C. Substantial Evidence Supports the Juvenile Court’s Finding of
No Alternative Means to Protect the Children
Before the juvenile court removes a child from parental custody, it
must find there are no reasonable means by which the child’s physical health
can be protected without removal. (§ 361, subd. (c)(1).) The juvenile court
has broad discretion in making a dispositional order (§ 361, subd. (c)), and it
properly considered and rejected the alternatives to removal in this case.
The juvenile court specifically considered family therapy and
unannounced visits as suggested by Mother’s counsel but found those means
could not adequately protect the children considering “the abuse had been
ongoing and was happening nearly daily.” The juvenile court had found there
was substantial risk to the Children after considering the nature of the
abuse, Mother’s mental condition, and the stressors Mother had experienced
caring for the twins since the untimely death of her partner.
Mother’s conflict negotiation skills were “not good,”( and she was “still
learning how to deal with preteens . . . [and] how to speak to children in
different ways.” Mother did not express any remorse, and although she was
attending parenting and child abuse classes, none of her classes had
addressed physical abuse. (Cf., In re Ashly F. (2014) 225 Cal.App.4th
13803, 810 [reasonable means to protect child in the home “given the mother’s
expression of remorse and enrollment in a parenting class”].)
D. Minor’s counsel adequately advised the juvenile court of
the Children’s wishes
Mother asserts in the conclusion of her opening brief that minors’
counsel failed to advise the court of the Children’s wishes are required by
section 317, subdivision (e)(2). A “primary responsibility” of minor’s counsel
“is to advocate for the protection, safety, and physical and emotional
well-being of the child.” (§ 317, subd. (c)(2).) Minor’s counsel is required to
“interview the child to determine the child’s wishes and assess the child’s
well-being” and “advise the court of the child’s wishes.” (§ 317, subd. (e)(2).)
However, “[c]ounsel shall not advocate for the return of the child if, to the
best of his or her knowledge, return of the child conflicts with the protection
and safety of the child.” (Ibid.)
Mother’s assertion is belied by the record. At the hearing, minors’
counsel stated: “As to disposition, the girls did want me to stress to the court
some of their positions and specifically at this time [E.P.] does not want to
return home. [P.P.] would like to live with mother; but in the alternative, she
would like to stay with her aunt. And that is all three of the kids’ position as
to where they would like to stay. ¶ As guardian ad litem, I would argue that
the minors remain placed with the aunt. I believe there is enough evidence
to show that they should be detained out of [M]other’s home, and I would
submit on the report.”
To the extent minors’ counsel inadvertently failed to specifically
address A.G.’s wishes, counsel’s error was harmless as the Agency’s
January 9, 2024 addendum report included A.G.’s wishes to return to
14
Mother’s care. (See, by analogy, In re N.O. (2019) 31 Cal.App.5th 899, 936–
937.)
DISPOSITION
The January 17, 2024 dispositional order is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
15