In re A.W. CA4/1

Filed 10/8/21 In re A.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.W., a Person Coming Under
the Juvenile Court Law.
D078959
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. NJ15670)
Plaintiff and Respondent,
v.
A.R.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Michael Imhoff, Commissioner. Affirmed.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff
and Respondent.
A.R. (Mother) appeals jurisdictional and dispositional orders removing
her nine-year-old son, A.W., from her custody pursuant to Welfare and
Institutions Code1 section 361, subdivision (c)(1). The San Diego County
Health and Human Services Agency (Agency) initiated the juvenile
dependency proceedings based on A.W.’s exposure to domestic violence
between Mother and her husband. After Mother failed to follow through on a
mutually agreed safety plan, the Agency petitioned to remove A.W. from
Mother’s custody under section 300, subdivision (b)(1). The juvenile court
held a contested jurisdictional and dispositional hearing over four days, found
the allegations of the petition true, removed A.W. from Mother’s custody, and
concluded there were no reasonable means to prevent A.W.’s removal.
Mother challenges the juvenile court’s jurisdictional and dispositional
findings in this appeal. She contends substantial evidence does not support
the jurisdictional findings because there was no risk of harm to A.W. at the
time of the contested adjudication. She also challenges the dispositional
findings removing A.W. from her custody and determining that no reasonable
alternatives existed to ensure his safety absent removal. Finally, she claims
the court violated her rights to due process by refusing her request to remove
a social worker from her case. We reject each of these contentions and affirm
the orders.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2
FACTUAL AND PROCEDURAL BACKGROUND2
1. Events Leading to A.W.’s Dependency Proceedings
A.W. is Mother’s only child. When Mother was 27 years old, she met
A.W.’s father, J.W. (Father).3 The couple separated shortly after A.W. was
born, and Mother was awarded primary physical custody during family court
proceedings. According to Father, Mother has an Adderall addiction and a
history of drug abuse. Father reported Mother stopped using Adderall during
the pregnancy, but she began using drugs again after A.W. was born.
Mother began dating A.W.’s stepfather, J.B. (Stepfather), when A.W.
was three years old. Six months into the relationship, after the couple had
been drinking, Mother threw a steak at Stepfather, and he pulled her hair
and bent her finger back. The couple nonetheless married three years after
this incident in 2017.
In August 2020, the Agency received a referral regarding a domestic
violence incident between Mother and Stepfather that took place on August
11. According to the police report, Stepfather punched Mother on her
forearm, and kicked her twice in the buttocks and vaginal area. Mother
sustained several visible bruises from the altercation. Stepfather also
threatened to kill Mother during the incident and attempted to prevent her
from calling the police. Mother was eventually able to flee from the home
with A.W., and they began living with the maternal aunt, M.R.
Mother told the investigating officer she and Stepfather had a long
history of domestic violence, and only some of the incidents were reported to
2 “In accord with the usual rules on appeal, we state the facts in the
manner most favorable to the dependency court’s order.” (In re Janee W.
(2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
3 Father is not a party to this appeal.
3
law enforcement. The investigating officer provided Mother a domestic
violence pamphlet and confirmed she understood how to obtain a temporary
restraining order against Stepfather.
Another maternal aunt, M.F., told the investigating social worker that
the domestic violence between Mother and Stepfather was ongoing. She
described occasions when Mother would arrive to family events with bruises
and would make excuses when questioned. Mother later began isolating
herself and A.W. from the maternal family. M.F. was concerned for Mother’s
and A.W.’s safety if they returned to the home.
When the social worker met with Mother in person on August 13, 2020,
she reported three incidents of domestic violence with Stepfather between
June and August 2020. Mother claimed A.W. did not witness these incidents,
either because he was not present in the home or was in his bedroom. She
denied having any injuries aside from bruises on her knees and forearms,
although the social worker also observed bruises on her chin and wrist.
Mother refused to allow the social worker to interview A.W.
The social worker created a safety plan for A.W. in which Mother
agreed to cut off physical contact with Stepfather, leave A.W. with a trusted
person while she collected her belongings from the home, and obtain a
restraining order against Stepfather by August 14. Mother violated the
safety plan almost immediately by failing to obtain a restraining order.
When the social worker asked about this, Mother explained she had hired a
private investigator4 to investigate Stepfather, and the investigator advised
her against getting a restraining order.
4 Mother referred to this private investigator as a “CIA agent,” although
the Agency confirmed the CIA was never involved.
4
A few weeks later, the social worker and law enforcement officers
responded to a report that Stepfather had firearms in the home. When the
social worker arrived at the home, Mother and A.W. were there collecting
Mother’s belongings. Mother denied seeing Stepfather and claimed he was
not home. After the social worker told Mother she was in violation of the
safety plan by bringing A.W. with her to the home, Mother became defensive
and walked away. The social worker interviewed A.W. later that day, and he
reported Stepfather was home when he and Mother arrived.
The social worker created a new safety plan, designating the maternal
aunt, M.R., and the maternal grandfather as A.W.’s primary caretakers, and
Mother was allowed supervised visits. Mother agreed to the plan for one
week, and it was set to expire on September 21, 2020.
2. A.W.’s Dependency Proceedings
On September 16, the Agency filed a petition under section 300,
subdivision (b)(1), alleging there was a substantial risk then eight-year-old
A.W. would suffer serious physical harm or illness based on Mother’s failure
to adequately supervise him by exposing him to violent altercations.
According to the petition, Mother minimized the frequency and severity of the
domestic violence, and the Agency’s efforts to safety plan and offer voluntary
services were unsuccessful.
At the detention hearing5 on September 18, the court found a prima
facie showing that A.W. was described by section 300, subdivision (b)(1), and
ordered A.W. detained in the home of the maternal aunt, M.R. Through
counsel, Mother submitted to A.W.’s placement with M.R., explaining the
arrangement would be in A.W.’s “best interest for the time being . . . .”
5 All juvenile court proceedings in this case were conducted virtually via
videoconference or telephone due to COVID-19 emergency measures.
5
After the detention hearing, a new social worker was assigned to the
case. Mother told the new social worker that before May 2020, her
relationship with Stepfather was “good.” She attributed the fights between
them to her Adderall use and her health problems caused by a leaking breast
implant. She denied Stepfather ever hit her and claimed she had bruises
because she was anemic. In Mother’s view, A.W. had only seen one incident
between her and Stepfather, and he “did not witness anything worthy of
getting taken away.” She also indicated there were three instances where
A.W. heard her and Stepfather arguing. She felt Stepfather was a source of
“stability” for A.W. and she was worried about Stepfather no longer being
involved in her son’s life.
Mother reported that she regretted calling the police in August 2020
and claimed the police report contained inaccurate information. She accused
the investigating officer of being a “sexist pig” who did not take her seriously.
Mother complained the Agency’s detention report also contained inaccuracies
and made her feel disrespected. “I felt,” she said, “like [the prior social
worker] didn’t like me since day one. She seemed cold and not nice to me.”
Mother further indicated that her family was trying to break up her marriage
because of a vendetta against Stepfather. She claimed her sister, M.F.,
fabricated allegations about Stepfather and that she and M.F. “hate each
other.”
Although Mother told the social worker she planned to move out of the
home she shared with Stepfather, she also stated they could not afford to live
separately and that she wanted her marriage to work. The social worker
referred Mother to group therapy classes for domestic violence.
In the jurisdiction and detention report dated October 23, 2020, the
Agency recommended the court find the petition true, remove custody from
6
Mother, and order reunification services. Mother requested a trial on
jurisdiction and disposition, and trial was originally set for January 5, 2021.
The case was transferred to a different social worker (Williams) in
December 2020. Williams authorized Mother’s therapist to supervise a
holiday visit between A.W. and Mother at Mother’s home. Although Williams
told Mother’s therapist that Stepfather was not allowed to attend, Stepfather
was present for the visit.
Two days before the scheduled trial, on January 3, Mother and M.R.
had a violent altercation in A.W.’s presence. Earlier that day, Mother called
M.R. upset about the upcoming trial because A.W.’s lawyer had opposed
returning A.W. to Mother’s custody. M.R. found A.W. crying later that
afternoon. According to M.R.’s husband, Mother called A.W. and asked if he
would rather live with her and Stepfather or with M.R. and her family, and
then began yelling and taunting him. M.R. sent a text message to Mother
stating that she was not allowed at the home that day for a visit.
Mother nonetheless arrived at the home about fifteen minutes later,
resulting in an altercation with M.R. According to M.R., Mother appeared to
be under the influence of alcohol and attempted to push her way into the
home. M.R. believed her finger had been broken during the confrontation.
She called 911 and gave a statement to an officer over the phone. M.R.’s
husband and eight-year-old daughter witnessed the incident and confirmed
M.R.’s version of events.
Social worker Williams prepared an addendum report for the January 5
trial date, which included details about the altercation that occurred between
Mother and M.R. on January 3. At the scheduled hearing on January 5,
Mother’s counsel requested and received a continuance given the recent
developments in the case.
7
A few days later, Williams spoke with A.W. about the incident on
January 3. A.W. confirmed he had a phone conversation with Mother that
day that made him cry. He told Williams, “[Mother] was saying stuff like, do
you want to live with your aunt, fine, then go ahead, live with your aunt, go
ahead, fine then.” He indicated Mother arrived at the house later that day
even though M.R. had told her not to. A.W. hid in the kitchen while Mother
and M.R. argued, but he could still hear them. He reported feeling upset and
crying during the argument.
A.W. also reported overhearing arguments between Mother and
Stepfather in the past, “a couple of times, like two or three or four.” He said
he was usually in his bedroom when they fought, but he also saw them
“arguing really loud” sometimes. He reported seeing broken glass and
hearing things being thrown around the house. He described the arguments
as “kind of scary.”
Williams also discussed the January 3 incident with Mother. Mother
explained she and M.R. had “personal issues” for years, and their
relationship had recently gotten worse. She claimed she and M.R. did not
have an argument earlier in the day on January 3, and she was “completely
blindsided by [M.R.’s] attack . . . .” Mother stated that she “walked into
[M.R.’s] home and was immediately met with anger and choking.” Mother
reported having a lump on her forehead, deep scratch marks, and bruises
from the altercation. Pending an evidentiary hearing, Mother obtained a
temporary restraining order (TRO) against M.R. following the incident.6
Williams and Mother had a phone conversation on January 8.
Although Williams believed the conversation had ended, apparently Mother
6 The hearing on Mother’s restraining order request, originally set for
January 21, was rescheduled to April 23. There is no indication in the record
that a permanent restraining order was ever issued.
8
was still on the call. Mother then overheard a conversation between
Williams, M.R., and M.R.’s husband regarding juvenile dependency
proceedings and the process for obtaining a TRO. After overhearing this,
Mother accused Williams of coaching her sister on how to “win the trial.”
By January 10, 2021, Mother’s relationship with social worker
Williams had soured completely. During a supervised phone call, Williams
had to redirect Mother several times after she told A.W. he would be “home
soon,” and that she and Stepfather were “going to fight to have him come
home.” These comments were made despite Williams’s warning that Mother
should avoid discussing the dependency proceedings, reunification, or
Stepfather during her communications with A.W. Williams also refused to
give A.W. a letter Mother had written discussing these topics. Mother
responded by accusing Williams in an e-mail of being abusive, a bully,
dishonest, unethical, brainwashing A.W., and attempting to profit off him.
Mother then began refusing visitation with A.W. because she did not want
Williams to be present.
In February, Mother filed a motion to remove social worker Williams
from A.W.’s case or, in the alternative, to strike all reports authored by
Williams. She argued Williams was biased by disregarding evidence
favorable to Mother, presenting adverse evidence from noncredible sources,
and willfully and intentionally violating court orders. Mother offered her
own declaration in support of the motion.
In preparing for the jurisdiction and disposition hearing, Mother told
Williams she had documents and certificates she wanted included in the
addendum report. Williams explained she would need the documents at least
four days before the hearing to review and verify them for inclusion. Mother
9
did not submit any documents by the deadline, and the documents were not
discussed in or attached to Williams’s final addendum report.
The contested adjudication hearing was held over four days in April
2021. The Agency submitted reports documenting events in the dependency
proceedings and the curriculum vitae of Williams. Mother submitted the 19
documents she had wanted Williams to include in her addendum report.
These included certificates of completion for domestic violence and parenting
classes; an undated letter from Mother’s therapist; a psychiatric diagnostic
evaluation dated March 10, 2021; and a non-random drug test result from
March 9, 2021.7
At the trial, the juvenile court heard testimony from Mother, the social
worker assigned to the case from October 2020 to December 2020, and social
worker Williams. Mother testified she had complained to the ombudsman
and Williams’s supervisor about Williams’s conduct, and that Williams
retaliated against her for making these reports. She faulted Williams for
failing to provide the court with her exhibits, although she admitted she had
not submitted the documents by the deadline Williams gave her.
Regarding her relationship with Stepfather, Mother admitted
Stepfather had stayed with her over the holidays, but testified that now they
were no longer living together. She indicated she was now willing to get a
restraining order against him and intended to divorce him when she was
financially able to do so. Mother maintained she had completed various
online courses and other one-on-one services for domestic violence and
parenting, which she felt helped her gain insight and realize she had
minimized the domestic abuse. She also participated in group therapy
7 The Agency asked Mother to submit to a random drug test on January
13, 2021, but Mother refused.
10
sessions but quit after receiving feedback that she was still minimizing and
other critiques she believed were inaccurate. She then began group therapy
at another location and had completed seven group therapy sessions in total
by the hearing date.
In her testimony, social worker Williams stated she was unaware
Mother had complained about her to her supervisor or the ombudsman.
Williams explained that when Mother overheard her phone call with A.W.’s
caretakers, she was only describing the differences between criminal and
juvenile dependency courts, and then thanked the caretakers for their
cooperation. Williams acknowledged she had not attached Mother’s exhibits
to her most recent addendum report, but claimed she did not have sufficient
time to verify the exhibits given her caseload and the work required to assess
the new evidence. She indicated she had reviewed the exhibits in
preparation for the hearing, and the exhibits did not change her
recommendation that the court should assume jurisdiction and remove
custody.
3. The Juvenile Court’s Rulings
The juvenile court first denied Mother’s motion to remove social worker
Williams. It rejected the implication that Williams was coaching A.W.’s
caretaker during the phone call Mother overheard in light of Williams’s
testimony that she was simply answering the caretaker’s questions. As to
the omitted exhibits, the court found Williams’s failure to present this
evidence was at most inadvertent, and there was no evidence she
intentionally withheld the information. It noted the communications
between Williams and Mother did not contain any expletives or pejoratives,
and the situation amounted to a disagreement between the two. The court
11
concluded that Williams’s removal from the case was unwarranted as the
record did not a support any finding of bias.
Regarding jurisdiction, the juvenile court found the petition true by
clear and convincing evidence.8 It noted there were incidents of domestic
violence between Mother and Stepfather prior to the dispute in August 2020
that led to the dependency proceedings. The court concluded that A.W. was
confused and traumatized by these domestic violence disputes. It also
questioned Mother’s reasoning for not getting a restraining order following
the August 2020 incident, since her injuries and A.W.’s presence in the home
during the altercation “created a real protective issue.” Although Mother’s
testimony represented she was ready to end her relationship with Stepfather,
her communications with A.W. suggested she was intending to reunite the
family.
The juvenile court also referenced the confrontation in January 2021
between Mother and her sister, M.R. Although the record was unclear as to
who was the primary aggressor, the court found Mother was a catalyst for the
dispute and that she minimized her role in it. Given A.W.’s prior exposure to
domestic violence, the court believed he was re-traumatized by the January 3
dispute between Mother and M.R., and that Mother failed to demonstrate
insight into the trauma caused by A.W.’s exposure to these domestic violence
incidents.
The juvenile court addressed Mother’s participation in treatment and
classes for domestic violence. It credited her for continuing with individual
therapy and for completing an online program. The court found, however,
that the one-on-one nature of these services “did not appear to be successful.”
8 Although the juvenile court made the jurisdictional findings by clear
and convincing evidence, only a preponderance of the evidence was required.
(§§ 300, 355, subd. (a).)
12
Although Mother had participated in group therapy, she stopped after
receiving critical feedback and elected to start a new program. The court
noted that Mother had only attended six or seven domestic violence
treatment sessions in six or seven months. The court concluded that given
the evidence in the record showing Mother had minimized A.W.’s trauma, he
was at risk until Mother made further progress in her treatment.
The juvenile court then removed custody from Mother and ordered
reunification services. It indicated it had carefully considered whether there
were reasonable means to avoid removal, but expressed concerns regarding
Mother’s conduct at the beginning of the case when she violated the
voluntary safety plan, as well as the impact of her conduct on A.W. Mother’s
behavior during the case indicated she was struggling with avoidance and
reactivity, and she still needed to demonstrate substantial insight into the
effects of domestic violence. The court concluded that short of removal, there
were no other means available to adequately protect A.W.
DISCUSSION
Mother contends she presented clear and convincing evidence that A.W.
was no longer at risk at the time of the contested adjudication hearing, and
thus the juvenile court’s jurisdictional and dispositional findings lack
substantial evidence. We disagree and explain why the record contains
ample evidence to support the court’s findings. We also reject Mother’s due
process contentions regarding the need to replace social worker Williams,
which we conclude lack support in the record.
1. General Legal Principles and Standard of Review
Under section 300, subdivision (b)(1), a child comes within the juvenile
court’s jurisdiction if the Agency shows: “(1) neglectful conduct, failure, or
inability by the parent; (2) causation; and (3) serious physical harm or illness
13
or a substantial risk of serious physical harm or illness.” (In re L.W. (2019)
32 Cal.App.5th 840, 848.) A child’s exposure to domestic violence is a well-
established basis for a jurisdictional finding under section 300, subdivision
(b)(1). (See In re M.W. (2015) 238 Cal.App.4th 1444, 1453 (M.W.); In re R.C.
(2012) 210 Cal.App.4th 930, 941; In re Daisy H. (2011) 192 Cal.App.4th 713,
717.)
After jurisdiction is established, a dependent child may not be taken
from the physical custody of the parent under section 361 at the dispositional
stage unless the court finds there is clear and convincing evidence that there
is or would be a substantial danger to the child’s physical health, safety,
protection, or physical or emotional well-being if returned home, and there
are no reasonable means to protect the child’s physical health without
removing the child. (§ 361, subd. (c)(1).)
We review the juvenile court’s jurisdictional and dispositional orders
for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) Under this
standard, “we must accept the evidence most favorable to the order as true
and discard the unfavorable evidence as not having sufficient verity to be
accepted by the trier of fact.” (In re Casey D. (1999) 70 Cal.App.4th 38, 53,
disapproved on other grounds in In re Caden C. (2021) 11 Cal.5th 614.)
2. Substantial Evidence Supports the Juvenile Court’s
Jurisdictional Findings
In challenging the juvenile court’s jurisdictional findings, Mother does
not dispute that she exposed A.W. to domestic violence. Instead, she
contends uncontradicted evidence shows she resolved the issues that led to
the domestic violence and there was no present risk to A.W. at the time of
trial.
To support the exercise of dependency jurisdiction under section 300,
subdivision (b)(1), there must be evidence the domestic violence “ ‘is ongoing
14
or likely to continue.’ ” (M.W., supra, 238 Cal.App.4th at p. 1453.) The
question, therefore, is whether circumstances at the time of the jurisdictional
hearing posed a “defined risk” of future harm to the child. (In re T.V. (2013)
217 Cal.App.4th 126, 134 (T.V.).) A parent’s “ ‘ “[p]ast conduct may be
probative of current conditions” if there is reason to believe that the conduct
will continue.’ ” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
Here there was ample evidence in the record to support the exercise of
jurisdiction under section 300, subdivision (b)(1). The evidence showed that
the domestic violence quarrel between Mother and Stepfather in August 2020
was not an isolated incident. A.W. reported hearing Mother and Stepfather
argue multiple times, including an incident where he saw broken glass
around the house and heard things being thrown. Mother’s sister, M.F.,
confirmed the domestic violence was ongoing and that Mother had shown up
to family events with bruises. Mother also told a police officer she and
Stepfather had a long history of domestic violence. Then, during the Agency’s
investigation, Mother initially admitted there had been several altercations
between her and Stepfather, and she later confirmed a domestic violence
incident occurred while she and Stepfather were still dating.
Mother contends there was no ongoing risk of harm at the time of trial
because she had separated from Stepfather and was willing to get a
restraining order against him. According to a report from Mother’s therapist,
however, Mother and Stepfather only separated for a few months at the
beginning of the dependency proceedings and began living together again
over the holidays. Indeed, Mother did not dispute that she allowed
Stepfather to be present in the home during a holiday visit with A.W.
Mother also told A.W. she was preparing to reunite him with
Stepfather. In fact, she made statements throughout the case indicating that
15
rather than ending her relationship with Stepfather, she was working on
improving it and that he was a good father figure to A.W. Although Mother
testified at the adjudication hearing that she was prepared to seek a
restraining order against Stepfather, the court was entitled to be skeptical.
In the seven months between the time the petition was filed and the
contested adjudication, Mother never sought a restraining order against him
even though she had expressly agreed to do so under the Agency’s initial
safety plan. Until it saw sufficient action to match expressed intent, the
court could reasonably discredit Mother’s testimony that she was finally
prepared to get a restraining order and end her abusive relationship with
Stepfather.
Moreover, Mother’s history of domestic violence was not confined solely
to her relationship with Stepfather, since she had a violent confrontation
with her sister as well. That clash occurred months after the dependency
proceedings were initiated, and the violence was apparently severe enough
that law enforcement was contacted and Mother obtained a TRO. Mother
contends she should be credited for responding to this dispute
“appropriately.” But the evidence related to this incident indisputably shows
she was involved in yet another exchange that further exposed her son to
domestic violence. A.W. reported that he hid during the argument, and that
the conflict between Mother and M.R. made him cry. Mother’s involvement
in several domestic violence incidents in A.W.’s presence that involved
different individuals suggests a pattern of interpersonal behavior that would
justify a continuing concern for A.W.’s emotional and physical safety.
Mother’s minimization of the domestic violence and reluctance to take
responsibility further supported a finding of an ongoing risk. She told the
social worker initially assigned to the case that she only had bruises on her
16
knees and forearms from the August 2020 incident, even though the social
worker could see bruising on her chin and wrist. She later claimed
Stepfather never hit her, and she had bruises because she was anemic.
Of particular concern, Mother expressly minimized the harm that the
domestic violence in her relationship with Stepfather caused A.W., claiming
he “did not witness anything worthy of getting taken away.” She likewise
attempted to deflect blame for the altercation with her sister, even though
four other individuals—including her son—contradicted her. Then, when she
received feedback during group therapy that she was minimizing, she quit
the program. Based on Mother’s persistent minimization and denial of
responsibility, substantial evidence supported the juvenile court’s finding
that A.W.’s exposure to abuse was likely to recur. (See In re Gabriel K. (2012)
203 Cal.App.4th 188, 197 [“One cannot correct a problem one fails to
acknowledge.”].)
Overall, Mother’s assertion that she resolved the issues that led to the
past domestic violence asks this court to reweigh the evidence, something we
cannot do. Although Mother presented some evidence suggesting she had
developed insight into the effects of the domestic violence, there is also
substantial evidence to support the juvenile court’s finding that domestic
violence of one form or another in A.W.’s presence was likely to recur. We
therefore conclude the record contains sufficient evidence to support the
court’s jurisdictional findings under section 300, subdivision (b)(1).
3. Substantial Evidence Supports the Juvenile Court’s Dispositional
Findings
Mother’s arguments regarding the juvenile court’s dispositional
findings are similar to the arguments she raises regarding the jurisdictional
findings. She contends the domestic violence was no longer a substantial risk
17
to A.W. because she had developed insight by attending classes and therapy,
and because she and Stepfather have ended their relationship.
A child may be removed from the parent’s custody at the dispositional
stage where “ ‘return of the child would create a substantial risk of detriment
to the child’s physical or emotional well-being.’ ” (In re H.E. (2008) 169
Cal.App.4th 710, 720.) “In determining whether a child may be safely
maintained in the parent’s physical custody, the juvenile court may consider
the parent’s past conduct and current circumstances, and the parent’s
response to the conditions that gave rise to juvenile court intervention.”
(In re D.B. (2018) 26 Cal.App.5th 320, 332.) A child does not have to be
“actually harmed before removal is appropriate. The focus of the statute is
on averting harm to the child.” (T.V., supra, 217 Cal.App.4th at pp. 135–
136.)
The record supports the juvenile court’s conclusion that A.W. faced a
substantial risk of harm if returned to his mother’s custody. As we have
discussed, evidence in the record indicated Mother and Stepfather would
likely continue their abusive relationship, and Mother’s testimony that she
would obtain and enforce a restraining order against Stepfather was not
credible. Mother emphasizes that the last domestic violence incident
between her and Stepfather occurred in August 2020, but in doing so she
overlooks the significance of the altercation she had with her sister in
January 2021. Her attempts to downplay her involvement in the January
dispute demonstrated that she had not developed meaningful insight and was
still minimizing the risks that domestic violence posed to A.W. She also cites
her participation in therapy and domestic violence classes as evidence that
A.W. was no longer at risk. Although therapy and domestic violence classes
were a step in the right direction, the juvenile court could reasonably
18
conclude that Mother still needed to progress in her treatment before A.W.
could safely return to her care.
Mother also contends the evidence was insufficient to support a finding
that there were no reasonable means to protect A.W. without removal from
her custody. She contends that the monitoring of her home through her
personal security system, unannounced visits from social workers, and in-
home services were viable alternatives to removal.
Substantial evidence in the record indicates that alternatives to
removal dependent on Mother’s cooperation were not an adequate means of
protecting A.W. Throughout this case, Mother was uncooperative and
demonstrated an unwillingness to work with the Agency. She was initially
provided the option of a safety plan following the domestic violence incident
with Stepfather in August 2020, which she violated by failing to obtain a
restraining order and by bringing A.W. with her to the family home when
Stepfather was present. Her disregard of the safety plan created a
significant risk that she would expose A.W. to further domestic abuse, and
this led the Agency to file a petition to remove A.W. from her custody.
Then, rather than taking responsibility for the effects of her behavior
on A.W., Mother claimed that the social worker who prepared the detention
report was biased against her. She similarly accused social worker Williams
of bias, and their relationship deteriorated to such a degree that she refused
supervised visits with A.W. if Williams was present. She also failed to
participate in the Agency’s recommended group therapy sessions until
February 2021, and then quit after receiving negative feedback. From this,
the juvenile court reasonably concluded that an arrangement dependent on
Mother’s cooperation with the Agency would not adequately protect A.W.
19
For all these reasons, substantial evidence supports the juvenile court’s
conclusion that A.W.’s removal from Mother’s custody was warranted.
4. The Failure to Replace the Assigned Social Worker Did Not Violate
Mother’s Due Process Rights
Mother contends the juvenile court violated her right to due process by
refusing to remove social worker Williams from the case. She argues that
Williams’s failure to provide the court with a written recommendation
regarding progress in counseling and other services denied her the right to a
full and fair hearing. She further maintains that social worker Williams
should have been removed from the case for bias.
In juvenile dependency proceedings, a parent has a due process right to
notice of any hearing which might affect his or her parental rights. (In re
Crystal J. (1993) 12 Cal.App.4th 407, 412–413.) Due process requires “notice
reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to
present their objections.” (Mullane v. Cent. Hanover Bank & Trust Co. (1950)
339 U.S. 306, 314.) The Due Process Clause also “ ‘entitles a person to an
impartial and disinterested tribunal in both civil and criminal cases.’ ”
(Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 673
(Brown).)
Social worker Williams testified at the trial to explain why she did not
submit the 19 exhibits she received from Mother in an addendum report.
Before submitting these documents in a written report, she would need to
review each document, follow-up with the provider, and discuss the document
with Mother to evaluate if she gained any insight from the program. She
explained she did not have time to complete this process before the trial
began due to her “incredible caseload.” Although Williams could have asked
the court for a continuance, she indicated it was not her practice to do so.
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Williams’s failure to provide this documentation in an addendum report
does not amount to a violation of Mother’s due process rights. In In re
Crystal J., supra,12 Cal.App.4th at p. 412, this court addressed a situation in
which the mother claimed deficiencies in the Agency’s adoption assessment
report constituted a violation of procedural due process. We acknowledged
that “[w]here an investigative report is required prior to the making of a
dependency decision, and it is completely omitted, due process may be
implicated . . . . [¶] Where, however, the assessment report is prepared, is
available to the parties in advance of the noticed hearing, and does address
the principal questions at issue in the particular proceeding, errors or
omissions in the report cannot be characterized in terms of denial of due
process. [Citations.] Deficiencies in an assessment report surely go to the
weight of the evidence, and if sufficiently egregious may impair the basis of a
court’s decision to terminate parental rights. Such deficiencies, however, will
ordinarily not amount to a deprivation of procedural due process.” (Id. at
p. 413.)
Here, the issues before the juvenile court were whether A.W. was
within the court’s jurisdiction as a dependent child (§ 300, subd. (b)(1)), and
whether he should remain in the custody of someone other than Mother
(§ 361, subd. (c)(1)). While social worker Williams did not provide the court
with a written recommendation regarding Mother’s new exhibits, the
Agency’s reports that were submitted into evidence contained the facts
underlying the Agency’s recommendations for jurisdiction and disposition,
including how the dependency proceedings were initiated and Mother’s
conduct throughout the case. Mother received these reports in advance and
was given an opportunity to respond. Thus, “[t]his is not a case in which the
parties’ due process rights were violated because they did not receive the
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report or no investigation was conducted.” (In re Noreen G. (2010) 181
Cal.App.4th 1359, 1380–1381.)
We further conclude that Williams’s failure to provide these documents
in a written report was not prejudicial. Mother, through counsel, submitted
her 19 exhibits into evidence. Williams also testified about why her
recommendation in the case was not changed by the new evidence. Although
Mother complains that Williams should not have been permitted to give this
testimony, Mother had an opportunity to cross-examine her about the basis
for her recommendation. There is no indication that she was surprised by
Williams’s testimony at the hearing, nor has she explained why her ability to
contest Williams’s recommendation on cross-examination was unfairly
prejudicial. Indeed, the record shows counsel’s questions thoroughly
challenged Williams about the relevance of the new exhibits. Thus, when the
juvenile court made its findings, it possessed complete and accurate
information about Mother’s progress in her treatments and the grounds for
the Agency’s recommendation. On this record, we conclude the outcome
would likely have been the same even if Williams provided the court with the
exhibits in a written report prior to the adjudication hearing. (In re Larry P.
(1998) 201 Cal.App.3d 888, 896.)
Mother’s remaining contention that social worker Williams should have
been removed for bias is also unpersuasive. Section 16513.5 authorizes the
removal of a social worker from dependency proceedings “if a preponderance
of evidence shows that a conflict of interest has occurred that would interfere
with the social worker’s ability to objectively carry out his or her duties,
which may include, but is not limited to, any of the following: [¶] (a) The
social worker has had sexual contact, as defined in Section 43.93 of the Civil
Code, with any party to the dependency proceedings. [¶] (b) The social
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worker has a relationship with an individual who is adopting or attempting
to adopt a child who is the subject of the pending dependency proceeding, and
the relationship is of such a nature that a conflict of interest or bias may exist
on the part of the social worker which may compromise his or her objectivity.
[¶] (c) The social worker has been convicted of perjury with regard to the
dependency proceeding before the court.”
Mother does not contend that social worker Williams meets any of the
enumerated examples under section 16513.5. She nevertheless contends that
Williams should have been removed for bias because Mother overheard her
“coaching” A.W.’s caretakers and refused to submit Mother’s exhibits in an
addendum report. According to Mother, Williams’s conduct demonstrated
she could not report fairly, honestly, and objectively in this case.
Deferring, as we must, to the juvenile court’s factual findings, Mother
has failed to demonstrate that Williams’s conduct in this case was biased. As
we have explained, Williams testified about why she did not have time to
submit Mother’s new exhibits in a written addendum report, and there is no
evidence indicating that Williams purposefully withheld evidence that was
favorable to Mother from the juvenile court. Additionally, while Mother’s
declaration presented one version of events regarding the phone call she
overheard between Williams and A.W.’s caretakers, Williams provided a
different account during her testimony. She explained that during this
conversation she merely described the differences between criminal and
juvenile dependency courts, and then thanked the caretakers for their
cooperation. She never coached them on how to “win” the case, and the
explanation she gave at the hearing was consistent with what she stated in
her addendum report.
23
Moreover, the juvenile court reasonably discredited Mother’s
accusations against Williams in light of the fact that Williams was not the
only individual Mother accused of bias during these proceedings. Mother also
felt that the initial social worker assigned to her case treated her unfairly.
She similarly complained that the police officer who responded to the
domestic violence dispute in August 2020 was sexist and falsified information
in his report. Later, she suggested that the counselor in her group therapy
sessions had provided inaccurate information about her living arrangement
with Stepfather and wrongly accused her of minimizing. Finally, she accused
both of her sisters of fabricating allegations.
So rather than demonstrating that Williams had a conflict of interest,
the record indicates that Mother tended to accuse her perceived adversaries
of animosity and bias throughout these proceedings. At most, Mother has
demonstrated that she and Williams disagreed about the appropriate
recommendations and orders in this case, but that does not demonstrate bias
warranting Williams’s removal under section 16513.5 or amount to a due
process violation. (Cf. Brown, supra, 224 Cal.App.4th at p. 673 [adverse legal
rulings do not reflect personal bias].)
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DISPOSITION
The juvenile court’s findings and orders are affirmed.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
GUERRERO, J.
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