In re T.P. CA2/5

Filed 10/14/22 In re T.P. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re T.P. et al., Persons Coming B315586
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. Nos. 20CCJP06360A-B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.D.P. et al.,
Defendants and Appellants.
APPEAL from order of the Superior Court of Los Angeles
County, Philip L. Soto, Judge. Affirmed.
Benjamin Ekenes, under appointment by the Court of
Appeal, for Defendant and Appellant Father.
Caitlin Christian, under appointment by the Court of
Appeal, for Defendant and Appellant Mother.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
____________________________
Appellants E.D.P. (father) and N.Z. (mother) appeal a
juvenile court order denying their requests to regain custody of
their children T.P. and E.P. from respondent Los Angeles
Department of Children and Family Services (the Department).
They contend the court erroneously required them to provide
statements to law enforcement in violation of their right against
self-incrimination. We reject this argument because the court
merely ordered the Department to arrange for the parents or
their attorneys to “meet and confer” with the police and did not
compel mother or father to provide testimony.
Father and mother also argue the juvenile court
impermissibly conditioned unmonitored visits with the children
on their willingness to provide statements to the police. We do
not reach this issue because it is moot. After mother and father
filed their appeals, the juvenile court granted them unmonitored
visits.
Mother and father contend the juvenile court also
erroneously conditioned the return of the children to their
custody on their statements to the police and the outcome of a
criminal investigation. The premise of this argument is simply
not true. The juvenile court made no such order.
Finally, father and mother contend there was no
substantial evidence to support the juvenile court’s order and
findings. After reviewing the record in the light most favorable to
the Department, we reject this argument too.
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BACKGROUND
1. The Family
T.P. and E.P. were born in November 2018 and May 2020,
respectively. E.P. was about six months old at the time of the
incident which gave rise to this action.
Mother, father, and the children lived together in the back
house of a two-home property. The children’s maternal
grandparents and aunt B.M. lived in the front house.
Until the Department interceded, mother was the primary
caretaker of the children. She does not work outside of the home.
When mother was not with the children, father or their maternal
grandmother took care of them. About twice a month, one of
mother’s female cousins watched the children for about 30
minutes.
2. E.P. Sustains A Serious Injury that Appears to
be the Result of Abuse
On November 26, 2020, mother went to the gym and left
the children in the care of father. Before she left, mother put
E.P. to sleep in a bedroom. When father was first interviewed by
a social worker, he said the child was sleeping in mother and
father’s bedroom in the back house. But he subsequently told the
police and a social worker that E.P. was sleeping in the maternal
grandparents’ bedroom in the front house. Father could not
explain why he gave inconsistent statements.
When E.P.’s naptime ended, father went to check on him.
According to father, when he went into the bedroom, E.P. was
pale, gasping for air, and his eyes were rolling back. Father
claims he shook the child “a little bit” while calling his name, but
E.P. did not respond. Father then took E.P. to aunt B.M.’s
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bedroom and started cardiopulmonary resuscitation. A family
member called 911. Paramedics quickly arrived and took E.P. to
the hospital.
At the hospital, the treating physicians determined that
E.P. suffered from a subdural hemorrhage on the left side of his
brain with old and new blood. Doctors Julian Hirschbaum,
Hannah Gwin, Lana Vasiljevic, and Catherine DeRidder
suspected the injury was caused by abuse.
When interviewed by a social worker, mother and father
denied that E.P. had fallen or suffered from a traumatic event.
Both parents failed to provide any explanation for E.P.’s injury.
Both also denied that there was any domestic violence in their
household. Shortly after her initial interview, mother contacted
the social worker and stated that three months before the
incident, E.P. was with her during an automobile accident,
though he did not appear injured at the time.
Doctors Hirschbaum, Gwin, Vasiljevic, and DeRidder each
opined that the parents’ statements were not consistent with
E. P.’s injuries. After conducting additional tests and consulting
with a pediatric neuroradiologist, Dr. DeRidder concluded the
injury was caused by an acceleration-deceleration event within 1-
2 weeks of E.P. coming to the hospital, and that E.P. likely had a
mild case of Shaken Baby Syndrome. Dr. DeRidder also asked
child abuse pediatrician Dr. Philip Hyden to review the case. Dr.
Hyden agreed with Dr. DeRidder’s assessment.
3. The Juvenile Court Assumes Jurisdiction and
Orders Reunification Services
On November 30, 2020, the Department obtained an
emergency removal order from the juvenile court. The children
were placed in the care of their maternal aunt V.M. and the
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aunt’s husband. V.M. and her husband live in a different
residence than the homes where mother, father, and the
maternal grandparents reside.
On December 2, 2020, the Department filed a juvenile
dependency petition against mother and father. The Department
alleged that E.P. and T.P. came within the jurisdiction of the
1
court pursuant to Welfare and Institutions Code section 300,
subdivisions (a) and (b), which provide for jurisdiction when a
child has suffered, or there is a substantial risk that a child will
suffer, serious physical harm caused by a parent’s intentional
conduct or negligence. The petition also alleged that the court
had jurisdiction over E.P. pursuant to section 300, subdivision
(e)(causing or failing to protect against severe physical abuse),
and jurisdiction over T.P. pursuant to section 300, subdivision
(j)(the child’s sibling was abused or neglected).
On February 4, 2021, the juvenile court held a hearing on
whether it should sustain the petition and assert jurisdiction over
the children. The Department asked the court to sustain the
petition and deny the parents reunification services. A
reunification plan would not be “effective,” the Department
argued, because E.P. was clearly abused by someone within the
family and father and mother failed to acknowledge any kind of
abuse or responsibility.
The juvenile court sustained the petition, found all the
counts true, declared the children dependents of the court, and
placed the minors in the Department’s custody. The court also
ordered the Department to provide the parents reunification
1
Future statutory references are to the Welfare and
Institutions Code.
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services, including parenting, conjoint, and individual
counselling. The court granted mother and father monitored
visits with the children. It also granted the Department
discretion to “liberalize” visits.
4. The Parents’ Efforts to Reunify with Their
Children
Both mother and father successfully completed a parenting
training course. They also participated in family counseling with
the children. Additionally, both parents received individual
counselling; mother completed 10 sessions and father completed
6. But during counseling and in his conversations with social
workers, father did not acknowledge having anything to do with
E.P.’s injury. There is also nothing in the record indicating
mother admitted that she or father had any responsibility for
what happened to E.P.
5. The Department’s Assessment of the Parents’
Progress and Written Recommendations to the
Juvenile Court
In a status review report and “last minute information”
documents filed with the juvenile court for its consideration at
the September 9, 2021, hearing, the Department acknowledged
mother and father partially complied with their case plan and
made substantial progress. But the Department also
recommended that mother and father complete the Parents in
Partnership program and father complete a fatherhood program.
The Department further noted that the parents were receptive to
its recommendations for additional services. Based on the
recommendations of a clinician working with mother and father,
the Department also advised the juvenile court that both parents
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would benefit from services related to the children’s adjustment
to living with them again.
The Department requested the juvenile court to order that
the children remain in its custody. It also asked the court to
grant mother and father only monitored visitation.
The Department provided a host of reasons for its requests.
Its main argument was that “[t]he parents are the primary
caregivers of the children and they have failed to provide an
explanation that justifies the injuries to the child, [E.P.], which
could have resulted in the death of the child.”
The Department also noted that the parents and their
criminal lawyers had not cooperated with Jenny Sierra, a
detective in the Special Victims Bureau of the Los Angeles
County Sheriff’s Department. This issue was discussed
throughout the Department’s submissions to the court. The
Department stated that it was not “inclined” to recommend
unmonitored visits until Detective Sierra completed her
investigation.
Detective Sierra advised the Department of her repeated
efforts to contact mother, father, and their criminal lawyers. She
further stated the sheriff’s department was not “seeking to arrest
the parents” but wanted to provide them with resources so they
“can become better parents.” “Detective Sierra stated all she
needs is for the parents to reach out and speak to her either along
with their attorneys or their attorneys may speak to her.” After
expressing her frustration with the lack of response by the
parents’ criminal lawyers, Detective Sierra stated, “she will call
or email these attorneys for further matters so that she may
address the case files open for this family appropriately.”
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Shortly thereafter, Detective Sierra stated in an email to
the Department that she “had not heard from the parents or the
attorneys” and that she “had never had attorneys avoid
communication before.” Detective Sierra indicated she could not
“move forward without a statement from the parents or at least
the attorneys.”
6. The September 9, 2021, Hearing and Order
On September 9, 2021, the juvenile court held a six-month
review hearing pursuant to section 366.21, subdivision (e). The
court admitted into evidence numerous reports and documents
offered by the Department. The court then asked for “brief
arguments.”
Mother, father, and the children asked the court to order
the children to be returned to the parents’ home. They also
argued that whether the parents spoke to Detective Sierra was
irrelevant because the parents had a constitutional right not to
talk to the police.
The Department emphasized four points. First, the
Department argued it was unable to contact father’s therapist at
Kaiser and could not “confirm whether father actually addressed
the issues in therapy. And these are extremely serious issues.”
Next, the Department stated it believed the parents would
benefit from the Parents in Partnership program and father
would benefit from a “project fatherhood program.”
The Department also addressed the “detective issue,” which
it found “extremely concerning” because the parents had “dodged
throughout this entire case the truth” about E.P.’s injuries. “[I]f
the parents are unwilling to talk to the detective to close the
criminal investigation,” the Department argued, “then the
Department is unable to say with any certainty that the parents
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have actually remedied the situation which brought them before
this court.”
Finally, in a related point, the Department agued: “The
abuser is still out there. And the abuser is likely one of the
parents.”
The juvenile court then orally made its ruling. “[B]ased on
the evidence presented today,” the court stated, it would
“continue jurisdiction.” The court found “there is still a
substantial risk of detriment to the . . . children’s safety if the
children were returned to parents.” The court further found the
parents were in “partial compliance” with their case plan and
that the Department had complied with its obligation to make
reasonable efforts to return the children to their parents. The
court then set a 12-month review hearing pursuant to section
366.21, subdivision (f).
The juvenile court also issued two directives. First, the
court ordered father and mother to sign any waivers or releases
necessary for the Department to get all reports and records
relating to services they received. Second, the court stated: “And
I’m ordering the Department to make arrangements for the
parents and their attorneys to meet and confer with the
investigating--criminal investigating agency for any statements
that they want that will finalize the criminal investigation.”
These oral orders were formalized in a written order
entered that day. Father and mother both filed timely appeals of
the September 9, 2021, order.
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7. Post-Appeal Events2
On November 2, 2021, mother and father attended a
Parents in Partnership orientation.
On December 29, 2021, mother, father, a staff member of
Parents in Partnership, caregiver V.M., a social worker, and
others had a meeting to develop an action plan for the parents to
obtain unmonitored visits with their children.
In January 2022, the parents’ criminal attorney
communicated with Detective Sierra and a sergeant in the
sheriff’s department. As of the writing of the Department’s
February 28, 2022, status review report, the criminal
investigation remained open.
On March 10, 2022, the juvenile court held a 12-month
review hearing pursuant to section 366.21, subdivision (f). In its
order, the court denied the parents’ request to return the children
to their physical custody. The court, however, granted mother
and father unmonitored visits and ordered the Department to
provide them with additional reunification services. The court
also directed the Department to seek records from Kaiser by
subpoena if it did not provide the requested information.
DISCUSSION
I. The Juvenile Court Did Not Violate the Parents’
Right Against Self-Incrimination
Father and mother argue the juvenile court’s order
required them to provide statements to the police. They contend
2
On May 23, 2022, this court took judicial notice of
three post-appeal documents.
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this order violated their right against self-incrimination under
3
the Fifth Amendment to the United States Constitution.
The premise of this argument is incorrect. The Fifth
Amendment protects an individual against “ ‘testimonial’
communications of an incriminatory nature, obtained from the
person under official compulsion.” (People v. Low (2010) 49
Cal.4th 372, 390.) Nothing in the juvenile court’s order required
mother or father to make potentially incriminating statements to
the police. Rather, the court ordered the Department to “make
arrangements” for the parents and Detective Sierra to “meet and
confer” regarding “any statements that they want.”
This directive must be placed in context. There is
abundant evidence in the record that the sheriff’s department
was willing to speak to the parents’ lawyers in lieu of speaking to
the parents themselves. We must assume the juvenile court
“considered all the evidence before it.” (Bennett v. Phelps (1955)
136 Cal.App.2d 645, 652.)
Moreover, whether the juvenile court erred in ordering the
parents or their lawyers to meet and confer with the sheriff’s
department is moot because such communications have occurred.
At this point, we cannot grant effective relief and we decline to
exercise our discretion to resolve this issue on appeal. (In re N.S.
(2016) 245 Cal.App.4th 53, 60.)
Father argues the appeal is not moot because the juvenile
court’s order “infected the subsequent 12-month review orders.”
He does not, however, explain how the March 10, 2022, order was
3
In the absence of testimonial immunity, mother and
father were free to refuse to provide statements to the police . (In
re Mark A. (2007) 156 Cal.App.4th 1124, 1142.)
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“infected.” The order does not state anything about
communications between the parents or their lawyers with the
sheriff’s department. There is thus no basis to conclude the
juvenile court’s meet-and-confer order is an ongoing concern.
II. The Parents’ Argument the Juvenile Court
“Conditioned” Unmonitored Visits and the Return of
the Children on Their Statements to the Police and
the Outcome of the Criminal Investigation
Father argues the juvenile court violated his due process
rights by “conditioning unmonitored visits and the children’s
return home on the parents providing statements to law
enforcement and the outcome of the criminal investigation.”
Mother joins and adopts this argument.
After the juvenile court issued its initial orders regarding
(1) the parents signing any necessary waivers and releases and
(2) the Department arranging for the parents to meet and confer
with the sheriff’s department, it expressed its views about how it
would consider future developments.
Referring to possible statements by the parents to the
sheriff’s department, the court stated: “If [the Department] got
the statements, then if there’s [no] specific risk that they can
point to, I want the Department to go to unmonitored visits for
the parents, at least for the two-year-old and start moving
forward.”
The juvenile court further stated:
“And I realize the children are young and that’s why we
have to take it a step at a time and a go slow approach. So we
are going to give you six more months of services with modified
visits once you provide all of this material.
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“So this is an incentive for you to sign off immediately so
they can get the papers from service providers; for you to meet
with detectives as soon as you can so the Department can get
statements from detectives about any involvement you may have
in it.
“Now I understand the detectives have said, ‘We don’t plan
on arresting anybody right now,’ but they could change their
minds. We don’t know -- not if the investigation is still open--
which is what is being provided for the court from the
[Department’s] daily services log.
“But once these things are in the books, unless there’s some
specific evidence --something other than, ‘We aren’t sure what
might happen.’ That’s not enough. The Department needs to get
past that and show the family that they can trust them by giving
them unmonitored visits and overnight visits when it’s
appropriate. But at least unmonitored visits.”
After making these statements, the court orally pronounced
its remaining orders, which were incorporated in its written order
along with its two initial oral orders. While the juvenile court’s
statements about what it expected of the parents and the
Department in the future perhaps assisted the parties in deciding
how to proceed, the statements were not incorporated into the
court’s oral or written orders.
“ ‘[I]t is what the court did, and not what the judge of the
court stated during the course of the trial, that determines the
course of our inquiry upon this appeal, as there is a vital
distinction between what the judge of a trial court may say and
what the trial court actually does.’ ” (Diaz v. Shultz (1947) 81
Cal.App.2d 328, 332 (Diaz); accord Fresno Unified School Dist. v.
Workers’ Comp. Appeals Bd. (2000) 84 Cal.App.4th 1295, 1311,
13
fn. 6 [quoting Diaz].) The oral “deliberations” of the court are
thus conclusively merged in its final order. (Diaz, at p. 333.) In
other words, “a judge’s comments in oral argument may never be
used to impeach the final order, however valuable to illustrate
the court’s theory they might be under some circumstances.”
(Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624,
633; accord Diaz v. Professional Community Management, Inc.
(2017) 16 Cal.App.5th 1190, 1206 [“while a court’s oral
statements may be illustrative of its thinking, it is the court’s
written order that constitutes the ruling”]; Collins v. Hertz Corp.
(2006) 144 Cal.App.4th 64, 77–78 [an oral discussion by the trial
court is merely an informal statement of its views and not itself
the decision].)
Here, the premise of mother and father’s argument is
wrong. The juvenile court did not issue an order “conditioning”
the children’s return to the parents’ custody on their statements
to the police or the outcome of the criminal investigation. Nor did
it issue an order conditioning unmonitored visits with the
children on those things. Instead, the court merely expressed its
views about various matters without incorporating those views in
its final written order. Because the parents’ premise is without
foundation, their argument collapses.
Additionally, as to unmonitored visits, the issue is moot. In
its March 10, 2021, order, the juvenile court granted mother and
father unmonitored visits.
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III. There was Substantial Evidence Supporting the
Juvenile Court’s Order and Findings
a. The juvenile court’s rejection of the parents’
request to regain custody of the children
Section 366.21, subdivision (e)(1) provides that at the six-
month review hearing, “after considering the admissible and
relevant evidence, the court shall order the return of the child to
the physical custody of his or her parent or legal guardian 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.” The juvenile court
made this finding with respect to T.P. and E.P.4
Mother and father argue that there was no substantial
evidence supporting the juvenile court’s order denying their
request to return the children to their physical custody at the six-
month review hearing.
“When the sufficiency of the evidence to support a finding
or order is challenged on appeal, the reviewing court must
determine if there is any substantial evidence, that is, evidence
which is reasonable, credible, and of solid value to support the
conclusion of the trier of fact. [Citation.] In making this
determination, all conflicts are to be resolved in favor of the
prevailing party, and issues of fact and credibility are questions
for the trier of fact. [Citation.] In dependency proceedings, a
trial court’s determination will not be disturbed unless it exceeds
4
The juvenile court made this finding under the
higher clear and convincing evidence standard.
15
the bounds of reason.” (In re Ricardo L. (2003) 109 Cal.App.4th
552, 564.)
In reviewing whether there was substantial evidence
supporting the juvenile court’s order, “we must keep in mind that
the purpose of the reunification plan is ‘to overcome the problem
that led to removal in the first place.’ ” (In re Mary B. (2013) 218
Cal.App.4th 1474, 1483.) Here, the impetus that led to the
removal of the children was the abuse of E.P. that almost killed
the child and the failure of the parents to take responsibility or
even acknowledge the child was abused. At the six-month review
hearing, the juvenile court could have reasonably concluded the
children were still in danger. Despite months of therapy, father
and mother had not clearly acknowledged the abuse or taken any
responsibility.
There was also evidence father and mother would benefit
from additional services, including a Parents in Partnership
program, a fatherhood program for father, and relocation
readjustment services. Furthermore, the Department did not
have complete information on father’s counseling. Collectively,
this was substantial evidence to support the court’s order.
Father and mother argue: “A juvenile court order requiring
the admission of abuse as a precondition to reestablishing a
parent’s visitation rights with his or her child violates the
parent’s Fifth Amendment right against self-incrimination.” This
is an overbroad and inaccurate statement. While a parent is free
to stand on his or her Fifth Amendment right not to testify
without testimonial immunity, the juvenile court “may
legitimately require a parent to admit responsibility for wrongful
acts as a condition to be fulfilled in therapy.” (In re Mark A.,
supra, 156 Cal.App.4th at p. 1142; accord In re Jessica B. (1989)
16
207 Cal.App.3d 504, 520–521; In re the Welfare of J.W. (Minn.
1987) 415 N.W.2d 879, 883.)
In any case, as explained, the juvenile court did not
establish any preconditions in its order. Rather, it simply found
that returning the children to their parents at the six-month
review hearing would create a substantial risk of detriment to
the safety, protection, or physical or emotional well-being of the
children. There was substantial evidence to support that finding.
b. The juvenile court’s finding the Department
provided reasonable services
At the six-month review hearing, if a child is not returned
to his or her parents, the juvenile court shall determine whether
the Department provided reasonable reunification services to the
parents (§ 366.21, subd. (e)(8)) and the “extent of the agency’s
compliance with the case plan in making reasonable efforts” to
return the child home (§ 366, subd. (a)(1)(B)). The juvenile court
found the Department satisfied these requirements.
Mother and father contend there was no substantial
evidence to support this finding. They argue the Department
failed to provide reasonable reunification serves because it did
not exercise its discretion to permit unmonitored visits.
This argument is moot. As we have explained, the juvenile
court granted mother and father unmonitored visits after they
appealed the September 9, 2021, order.
c. The juvenile court’s finding that father and
mother made only partial progress
At each review hearing, the juvenile court must determine
the “extent of the progress that has been made toward alleviating
or mitigating the causes necessitating placement” out of the
home. (§ 366, subd. (a)(1)(E).) The juvenile court found here
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that the parents’ progress was “partial.” Mother and father
argue there was no substantial evidence to support this finding.
We reject this argument for reasons we have already
explained. At the six-month review hearing, the parents had not
completed all the programs recommended by the Department.
Moreover, there was compelling evidence that someone in the
parents’ household abused E.P. but mother and father still failed
to acknowledge this abuse or take responsibility for the harm
E.P. suffered.
DISPOSITION
The juvenile court’s order dated September 9, 2021, is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.*
We concur:
RUBIN, P. J. KIM, J.
*
Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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