In re Jn.B CA4/1

Filed 2/2/21 In re Jn.B CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re Jn.B. et al., Persons Coming
Under the Juvenile Court Law.
D077885
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. J520273A-B)
Plaintiff and Respondent,
v.
K.H.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and J. Jeffrey Bitticks, Deputy County Counsel, for Plaintiff
and Respondent.
In this dependency proceeding, the court removed Jn.B. (age 13) and
her brother, Ji.B. (age 11) (together, the children), from J.B. (Father) due to
his physical abuse. K.H. (Mother), who lives in New Mexico, requested
custody of the children. (Welf. & Inst. Code, § 361.2.)1 Mother appeals the
juvenile court’s dispositional order denying her request for placement.
Because there is substantial evidence that respondent San Diego County
Health and Human Services Agency (Agency) met its burden to show clear
and convincing evidence that placement with Mother would be detrimental to
the children, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother met Father when she was 12 years old and he was 14 years old.
She became pregnant with Jn.B. when she was 13 years old. She gave birth
to Ji.B. approximately two years later. She coparented with Father while he
lived in foster care. The maternal grandmother also helped care for the
children. In 2011, when the children were approximately two and four years
old, Mother left Father due to his alleged infidelity.
In 2013, Mother became pregnant with her third child and informally
gave the maternal grandmother custody of the children because she was
homeless and unable to care for them. The maternal grandmother moved to
New Mexico with the children. In 2015, Mother also moved to New Mexico to
live with the maternal grandmother and the children. Child welfare services
intervened with the family after the maternal grandmother hit Jn.B. in the
face with a wire hangar.2 In 2018, the family and authorities agreed that the
children would live with Father in San Diego. Thereafter, Mother claimed
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 In 2015 and 2016, Mother had several law enforcement contacts in New
Mexico involving “ ‘[d]angerous drugs, conditions for sale,’ ” felony drug
possession, contributing to the delinquency of a minor, concealing identity,
and shoplifting.
2
she spoke to the children weekly but Father would not let her talk to the
children unless she sent him support money. Eventually, Father denied her
all access to the children and she lost contact with them.
In the meantime, Father and the children initially lived with the
paternal grandmother, then out of a car, and finally at a homeless shelter. In
late January 2020, the paternal grandmother took Ji.B. to an emergency
room.3 Doctors found bruising on Ji.B.’s head and face and strangulation
marks on his neck. Jn.B. reported that Father beat Ji.B. daily and also
forced her to hit Ji.B. As forms of discipline, Father made Ji.B. stand in a
corner all night, took away his food if he ate too slowly, and denied him
water. Father also hit and slapped Jn.B. The children did not feel safe with
Father and wanted to live with their paternal grandmother.
In February, the Agency filed petitions on behalf of the children
pursuant to section 300, subdivision (a), alleging that Father physically
abused and inappropriately disciplined the children. The Agency initially
detained the children with the paternal grandmother, and then moved them
to the non-relative extended family member home of T.F. The juvenile court
issued a temporary restraining order protecting the children from Father.
The Agency also located Mother in New Mexico who expressed “shock[]”
about the physical abuse allegations.
At that time, Mother was unemployed but looking for work. She
received financial support from the maternal grandmother and food stamps.
She lived in a one bedroom apartment with her three-year-old daughter and
stated that Catholic Charities had agreed to subsidize her rent for two years.
Mother admitted methamphetamine use for one and a half years, but claimed
that she quit on her own two years ago. Mother reported that she had
3 Undesignated date references are to 2020.
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“ ‘made a lot of progress’ ” since the children left her care, and was “ ‘ready to
be their mother.’ ”
At the jurisdictional and dispositional hearing in late February, the
parents made their first appearance, were appointed counsel, and arraigned.
Mother requested custody of the children, but the juvenile court deferred the
request.
At the contested jurisdictional and dispositional hearing on August 31,
the juvenile court sustained the petitions, declared the children to be
dependents of the court, denied Mother’s request for placement, ordered that
she receive reunification services, and denied reunification services to
Father.4 It also ordered an Interstate Compact on the Placement of Children
report to address the propriety of placing the children with Mother, that the
Agency make every effort to facilitate visits with Mother at least once a
month, and required that Mother participate in individual therapy and
conjoint therapy when appropriate. Finally, the court issued a three-year
restraining order protecting the children from Father. Mother timely
appealed.
DISCUSSION
A. Relevant Law and Standard of Review
At the jurisdictional hearing, the juvenile court must decide whether a
child falls within any of the categories set forth in section 300. (In re
Michael D. (1996) 51 Cal.App.4th 1074, 1082.) If so, the child may be
declared a dependent of the court. (Ibid.) “ ‘Then, at the dispositional
hearing, the court must decide where the child will live while under its
supervision, with the paramount concern being the child’s best interest.
[Citation.]’ ” (Ibid.)
4 Father is not a party to this appeal.
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The juvenile court has the authority to remove a child from a parent’s
physical custody pursuant to section 361. If the court does so, and there is a
previously noncustodial parent who desires to assume custody of the child,
the court “shall” place the child with the parent “unless it finds that
placement with that parent would be detrimental to the safety, protection, or
physical or emotional well-being of the child.” (§ 361.2, subd. (a).) In
evaluating possible detriment under section 361.2, subdivision (a), a court
must consider all relevant factors and determine whether the child would
suffer net harm if placed with the noncustodial parent. (In re Liam L. (2015)
240 Cal.App.4th 1068, 1086 (Liam L.).) “[A] finding of detriment is
equivalent to a finding that placing the dependent child with the
noncustodial parent is not in the child’s best interests.” (Ibid.)
A finding of detriment pursuant to section 361.2, subdivision (a), must
be made by clear and convincing evidence. (In re Abram L. (2013)
219 Cal.App.4th 452, 461.) “Clear and convincing evidence requires a high
probability, such that the evidence is so clear as to leave no substantial
doubt.” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Keeping in mind
the clear and convincing standard of proof applicable at the trial court level,
we review the court’s detriment finding under section 361.2 for “substantial
evidence from which a reasonable trier of fact could have made the finding of
high probability demanded by this standard of proof.” (Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1005.) “ ‘If there is substantial evidence to support
the findings of the juvenile court, we uphold those findings. [Citation.] We
do not evaluate the credibility of witnesses, reweigh the evidence, or resolve
evidentiary conflicts. Rather, we draw all reasonable inferences in support of
the findings, consider the record most favorably to the juvenile court’s order,
and affirm the order if supported by substantial evidence even if other
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evidence supports a contrary conclusion. [Citation.] The appellant has the
burden of showing the finding or order is not supported by substantial
evidence.’ ” (Liam L., supra, 240 Cal.App.4th at p. 1087.)
B. Substantial Evidence Supports the Dispositional Order
In denying Mother’s request for placement, the juvenile court found
that Mother had a relationship with her children, but found the nature of the
relationship to be “caustic” and “volatile” and thus detrimental to the
children. The court explained that Mother “either directly or indirectly” put a
great deal of guilt on Jn.B. and created an emotional environment where
Jn.B. was “extremely confused as to where to go and what to do and who to
turn to.” Regarding Ji.B., the court stated that he “just flat out is not ready
[to return to Mother]. He needs a great deal of therapy to address his needs
and concerns.”
Mother contends the juvenile court erred when it failed to follow the
mandate of section 361.2 and place the children with her because substantial
evidence did not support the juvenile court’s finding by clear and convincing
evidence that placing the children with her would be detrimental to them.
We disagree.
The record shows that Mother abandoned the children first with the
maternal grandmother and then with Father. Although Mother travelled to
San Diego eight or nine times while the children lived with Father, she failed
to visit them. When Mother called the children during the pendency of these
proceedings, Jn.B. frequently refused to speak to her. During a supervised
visit on July 23, the social worker reported that Mother and Jn.B. “were not
getting along” and Ji.B. remained quiet.
During calls, Mother used guilt to manipulate the children. On
March 4, Jn.B. told her caregiver that she did not want to talk to Mother
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because Mother’s questions made her feel “guilty” and she believed Mother
had not changed. During a telephonic Child and Family Team meeting on
March 11, Mother spoke to the children directly claiming she was “ ‘a
changed person’ ” and telling them “over and over again” how much she loved
them causing Jn.B. to cry and Ji.B. to cry “hysterically.” Both asked to be
excused from the meeting. The facilitator informed Mother that the children
become upset when Mother “keeps telling them that she loves them and they
feel like they are being forced to say it back.” During a call on May 11,
Mother complained “ ‘You guys don’t ever call me’ ” which caused Ji.B. to
start crying. The social worker noted that the children did not trust that
Mother had changed, they felt safe in their current placement and were
afraid of instability with Mother.
During the pendency of these proceedings Jn.B. vacillated on where she
wanted to live. In early August, she stated that she wanted to live with
Mother and then stated she was unsure where she wanted to live. Later that
month, she stated that she wanted to live at San Pasqual Academy and not
with Mother. At the hearing, Jn.B.’s counsel informed the court that
“minutes before” the hearing Jn.B. stated that she wanted to return to
Mother’s care, but counsel questioned the sincerity of the statement.
When initially asked about living with Mother Ji.B. responded, “I kinda
don’t want to. When we were in New Mexico, my mom was doing drugs and
we had to live with grandma.” Ji.B. expressed concern that if Mother is still
on drugs “we will be stuck out there.” On August 19, when again asked about
living with Mother Ji.B. told the social worker, “ ‘I don’t think [she] is ready
for us to come home,’ ” that he did not believe Mother would take good care of
him and “it would be a good idea to have more visits” with Mother. The social
worker noted that Ji.B. has only had one visit with Mother in almost three
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years. Although the children’s wishes are not dispositive, they are relevant
and the juvenile court could consider this factor in determining the children’s
placement. (In re A.C. (2020) 54 Cal.App.5th 38, 43 (A.C.).)
The social worker reported that Mother made minimal progress on her
case plan, stating that Mother needed to restart her parenting class, missed
sessions with her therapist and needed to start with a new therapist because
“things did not work out” with the first therapist. Additionally, neither child
had begun individual therapy. Notably, Father’s cruel treatment caused
Ji.B. to suffer from encopresis and enuresis. During the course of the
proceedings Jn.B. began displaying “concerning and defiant behavior” and
the social worker reported that Jn.B. “has a difficult time calming herself
down and responding appropriately to situations.” On these facts, the social
worker correctly questioned whether Mother would “know how to
appropriately deal with [Jn.B.’s] behaviors and seek the therapy [Jn.B.]
seems to need at this time to help her understand her current situation and
stabilize.” Even Mother’s case manager with Catholic Charities
recommended that Mother and the children participate in conjoint therapy
before placing the children with Mother.
Mother argues that even if the juvenile court believed her relationship
with the children to be minimal, the lack of a significant relationship between
them did not make the children’s placement with her detrimental to them
within the meaning of section 361.2. A child’s lack of contact with the
noncustodial parent cannot be the sole basis for a detriment finding. (In re
K.B. (2015) 239 Cal.App.4th 972, 981.) Here, however, the juvenile court did
not cite the strength of the children’s relationship with Mother as a relevant
factor; rather, it noted the unhealthy nature of the relationship, a finding
Mother did not challenge.
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Finally, Mother’s contentions that she would be able to meet the
children’s needs and did not act in a manner incompatible with parenthood
are misplaced. Our job is to consider whether the record contains
“substantial evidence from which a reasonable trier of fact could have made
the finding of high probability demanded by [the clear and convincing]
standard of proof.” (Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.)
Assuming the veracity of Mother’s contentions, we must presume that the
juvenile court considered this evidence, together with all other relevant
evidence discussed above, in finding that it would be detrimental to the
children to be placed with Mother. (Cf. Denham v. Superior Court (1970)
2 Cal.3d 557, 564 [trial court’s judgment or order is presumed correct].) As
previously noted, on appeal, this court does not reweigh the evidence in
determining whether the juvenile court’s ruling is supported by substantial
evidence. (Liam L., supra, 240 Cal.App.4th at p. 1087.)
“A court properly may decline placement with a safe and nonoffending
parent if that placement would be detrimental to the child’s emotional well-
being.” (A.C., supra, 54 Cal.App.5th at p. 46.) Based on the totality of the
evidence, the juvenile court could reasonably find, by clear and convincing
evidence, that it would be detrimental to the children’s emotional well-being
if they were to be placed with Mother. (§ 361.2, subd. (a).) Accordingly, we
conclude the juvenile court did not err by denying Mother’s request for
placement.
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DISPOSITION
The juvenile court’s finding of detriment and its order denying Mother’s
request for placement under section 361.2 are affirmed.
GUERRERO, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.
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