In re L.J. CA2/4

Filed 8/15/23 In re L.J. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
In the Matter of L.J. et al., B320979
Persons Coming Under
Juvenile Court Law. (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 21CCJP02835)
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
S.H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore.
Affirmed.
Jesse Frederic Rodriguez, under appointment by the
Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
________________________________________
S.H. (mother) appeals from the juvenile court’s orders
sustaining a Welfare and Institutions Code section 342
supplemental petition as to her children, L.J. (born March
2015) and T.B. (born May 2018), and removing them from
her custody.1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Original Dependency Action
L.J. and T.B. first came to the attention of the Los
Angeles County Department of Children and Family
Services (DCFS) in December 2020 due to concerns with
mother’s mental health and ongoing domestic violence
between mother and T.B.’s father, Ta.B. (father).2 Several
months later, mother took T.B. to the hospital to report that
she had seen the child place his finger and a pencil inside of
his anus. In the presence of medical professionals, mother
asked T.B. who had touched his anus; the child replied that
1 Unspecified references are to the Welfare and Institutions Code.
2 Father and Lawrence J., L.J.’s father, are not parties to this
appeal.
2
it was father’s girlfriend.3 Mother stated that the children
were role-playing sexual acts they had witnessed between
father and his girlfriend.
During her initial interview in May 2021, mother
reported that while she and father were separated, father
occasionally visited the children at her home. During many
of his visits with the children, father would engage in verbal
and physical altercations with mother. L.J. had to intervene
in one altercation to stop father from hitting mother with a
wooden hanger. In another incident, father sprayed mother
with mace. Mother denied having a mental health history,
declined a voluntary up front assessment, and refused to
sign consent forms for her mental health service provider.
L.J. denied being sexually abused or inappropriately
touched in any way. T.B. was not fully verbal and could not
provide a statement.
In his initial interview, father denied sexual and
physical abuse and denied having a history of domestic
violence with mother. Father contended that mother’s false
allegations were “a pattern of concern” placing the children
at risk of harm. Father’s girlfriend denied touching the
children and noted that mother started exhibiting strange
behavior in July 2020 after father moved out of her home.
Paternal grandmother, Donna S., reported similar
concerns for mother’s unresolved mental health issues,
suspecting mother might be using methamphetamine and/or
3 Medical reports later obtained by DCFS indicated a “[n]ormal
external exam, [and] no lesions/findings noted.”
3
having an ongoing mental health crisis. Over the past few
months, mother told Donna S. that another person (also
named Donna) was after the children, and she sent Donna S.
inappropriate pictures and text messages suggesting father
was gay. Following her interview, Donna S. called DCFS to
report that San Bernardino County Child Protective Services
(CPS) was at her home investigating concerns of child abuse
of her own children. Donna S. believed mother had
contacted CPS in retaliation for Donna S.’s interview with
DCFS.
According to a police report, mother, fearing her
neighbors had hacked into her computer to see the children’s
genitals, called the police in January 2021. Officers who
responded to mother’s home called in a referral to DCFS
questioning whether mother had undiagnosed
schizophrenia.4
On June 17, 2021, DCFS filed a non-detain petition on
behalf of the children under section 300, based on the
parents’ history of domestic violence and father’s abuse of
alcohol. The court found a prima facie case under section
300, and released the children to the home of parents.
The court held a combined jurisdiction/disposition
hearing on August 19, 2021. In a report filed the same day,
DCFS reported that the children remained in the home of
mother. During a follow-up interview, father reported that
mother “coache[d] the children to say [false] things about
4 Finding no additional evidence of ongoing incidents in mother’s
home, DCFS disposed of the referral as unfounded.
4
him.” Father stated that when mother has “temper
tantrums,” she “blacks out” and “has hit him and stabbed
him before.” Around 9:00 p.m. one evening, the children
called father. When asked if mother was home, the children
responded that maternal uncle Herbert H. was watching
them. Previously, father had prohibited Herbert H. from
watching the children because Herbert H. had mental health
issues and was living in a halfway house. Father drove to
mother’s home around 9:45 p.m. and cared for the children
throughout the night. Mother returned home around 7:00
a.m. appearing “‘[t]ired. Like a drug tired.’” As of the date
of the jurisdiction/disposition hearing, both children were
receiving therapy services.
At the hearing, the court sustained allegations of
domestic violence and father’s alcohol abuse under section
300, subdivision (b)(1),5 and issued a family maintenance
case plan for both parents. Mother’s case plan included a
family preservation program, mental health counseling, and
individual counseling to address parenting, co-parenting,
domestic violence, and mental health. The court also
ordered the parties to confer on a written custody schedule.
B. Family Maintenance Period
As reported in a March 2022 status review report,
father was in compliance with his case plan and was
showing “an awareness in protective factors.” Mother was
5 The court dismissed domestic violence allegations under section
300, subdivision (a).
5
noncompliant with her case plan. She refused family
preservation and mental health services, reasoning that she
had never been ordered to participate in mental health
counseling. She also reported that her own treating
therapist said she did not have any problems. Mother
provided no documentation for her therapist, refused to call
her medical provider to retrieve information from her
therapy sessions, and refused to sign forms releasing her
medical information to DCFS.
Several times between December 2021 and February
2022, mother vacillated between permanently surrendering
T.B. to father’s care and withholding the child from custody
exchanges with father. On January 17, 2022, mother stated,
“[Father] can keep [T.B.] I want to relinquish my rights. . . .
I’ll see him when he is 18.” Two weeks later, mother refused
to release T.B. to father, stating, “[Father and his girlfriend
are] abusing my child and DCFS is not doing anything about
it.” Two days later, mother reported that she had been hit
by a car and said that father “‘can keep [T.B.]’” During
another incident, mother “refused to receive [T.B.], when it
[was] her turn to have the child return to her care, despite
her concerns of physical and sexual abuse.”
DCFS received an additional referral in February 2022
for general neglect. The reporting party stated that mother
could be “diagnosed with Paranoid Schizophrenia and there
is suspicion that the mother’s current state of mental health
affects her ability to parent.” The day of the referral, mother
informed DCFS that T.B. was returned to her care with
6
scratch marks. Mother accused father’s girlfriend of
physically abusing the child. The reporting party spoke with
father, who replied that T.B. had no scratch marks on him
before father exchanged the child with mother, as proven by
pictures of the child taken before the exchange. Father also
reported that his girlfriend did not live with him and was not
allowed to touch T.B. pursuant to the ongoing dependency
case. The reporting party questioned mother’s accusations
and whether she had physically abused T.B. and “blam[ed] it
on the father’s girlfriend.”
Another referral was generated following a custody
exchange on March 4, 2022, at mother’s home. When father
contacted mother to exchange T.B., mother refused to
release the child to father. After a social worker and several
police officers arrived at her home, mother screamed and
cursed at them “while both children were looking out of the
window crying and [appeared] sorely petrified, . . . .” Officers
secured T.B. from the home and took the child down the
street to father. The child jumped in father’s arms and
smiled.
During an unannounced visit at her home several days
later, mother was asked about the incident. Mother yelled
at the social worker, “Your supervisor came here and you let
[T.B.] go to his father . . . even though he (the father) is
licking my child’s anus.”6 Mother continued to yell at the
6 T.B. told a social worker that father did not sexually abuse him.
Medical records showed that mother had taken T.B. to be examined
(Fn. is continued on the next page.)
7
social worker and recorded the social worker as she walked
away. L.J. was present during the incident.
Father was “shock[ed]” at mother’s new allegations of
sexual abuse. He stated that it was evident mother suffered
from severe mental health problems. He also believed
mother was trying to instill in T.B.’s head that father was
abusing him. Father produced two videos from mother
asking the children leading questions about his alcohol use.7
Father reported that mother “places the child, [T.B.], in the
middle of her issues, which has an emotional effect on the
child.” In light of the last incident and the current sexual
abuse accusation, father believed T.B. needed therapy.
Father agreed to follow through with any recommended
services.
On March 18, 2022, mother accused father and DCFS
of kidnapping her son. In a text message to DCFS, mother
stated, “I’m asking for an Amber Alert. Y’all [father and a
social worker] kidnapped my son on Sheriff Department
video cam.” At the time, DCFS was in the process of seeking
a removal order.
three separate times for sexual and physical abuse between April 2021
and February 2022. No findings of abuse or trauma were noted.
7 In both videos, mother asked the children questions “quickly and
aggressively about the child(ren) witnessing the father drinking
alcohol. They both answer[ed] that they did not see the father
drinking, but the mother continue[d] to ask question[s] to get the
answer she wanted, . . . . [T.B.] never mentioned the father
drinking . . . but [L.J.] changed her answers to conform to mother’s
leading questions.”
8
C. The Subsequent Petition
The court issued an order removing the children from
mother’s care on April 1, 2022. In a section 342 petition filed
a week later, DCFS alleged that mother’s history of mental
and emotional problems placed the children at risk of serious
harm. The petition alleged a failure to protect, willful or
negligent failure to supervise, and an inability to provide
regular care due to mental illness or substance abuse.
In a detention report filed April 21, 2022, DCFS
reported that mother refused to release L.J. to DCFS and
law enforcement despite a removal warrant.8 L.J. exhibited
disruptive behaviors in school and was disenrolled after
being “chronically absent.” Mother refused to provide an
explanation to the school for L.J.’s absences. While in
daycare, T.B. hit other children before telling mother that he
had been assaulted by another child. In one incident, T.B.
told mother that a teacher had hit him. DCFS recommended
referring both children for emotional and mental health
needs.
The court detained children from mother, ordered
monitored visitation, and ordered mother to sign all waivers
and releases for her medical records. The court set the
8 When law enforcement presented mother with the removal
order, she said L.J. was “not here.” A social worker informed mother
that L.J. had been seen entering the home. In response, mother slid a
notarized letter under the front door that read, “I, [mother], give
[maternal great aunt] Rhonda M[.] custody of [L.J.] . . . for support to
get back on my feet.”
9
matter for a jurisdiction/disposition hearing on May 19,
2022.
D. Jurisdiction/Disposition Hearing on the
Subsequent Petition
In a jurisdiction/disposition report filed on May 4,
2022, DCFS reported that T.B. was living with father while
L.J. was in foster care. Mother continued to deny having
mental health issues despite a letter from her medical
provider recommending additional psychotherapy. Mother
continued to accuse father of sexual abuse but did “not mind
if the minors ha[d] visits” with him. DCFS reported
“extreme concern” for mother’s erratic and aggressive
behaviors.
Following a psychological examination, an evaluator
determined that T.B. would benefit from mental health
services. “However, mother declined services at the time
and therefore the minor was not linked.” L.J. had not been
assessed for mental health services.
DCFS further reported that mother had participated in
three individual counseling sessions with her medical
provider, but because mother reported that she was not a
danger to herself or others in her sessions, she did not meet
the criteria for mental health services through her provider.
In a follow-up conversation, mother’s therapist stated that
“her hands [were] tied,” as [she was] not a court mandated
therapy provider.” DCFS continued to recommend a mental
health assessment to determine mother’s ability to parent.
10
DCFS also reported that L.J. started fighting other
children in her foster placement. In one incident, L.J.
slapped another child in the face for no apparent reason.
L.J. was uncontrollable at times and threatened to assault
her caregivers. DCFS requested a mental health services
order for L.J.
At the joint jurisdiction/disposition hearing on May 19,
2022, mother argued there was no medical opinion on her
mental health or her ability to care for the children.
Following argument of counsel, the court found by a
preponderance of the evidence, “[Mother] displayed bizarre
behavior, erratic and aggressive behavior, and I do think
that her mental health issues are still ongoing, and it would
be unsafe to return the children to her care at this time.”
Taking into account the children’s tender age, the court
found by clear and convincing evidence that it was necessary
to remove them from mother’s care. The court considered a
letter by mother’s therapist reporting on her completion of
three therapy sessions but noted that the therapist did not
have “all the documents and reports” to fully evaluate
mother’s mental health. The court sustained the section 342
petition, removed the children from mother’s custody,
ordered family reunification services, monitored visitation,
and a mental health evaluation (Evid. Code, § 730). Mother
timely appealed.
11
DISCUSSION
A. Governing Law
“In any case in which a minor has been found to be a
person described by Section 300 and [DCFS] alleges new
facts or circumstances, other than those under which the
original petition was sustained, sufficient to state that the
minor is a person described under Section 300, [DCFS] shall
file a subsequent petition.” (§ 342, subd. (a).) “Unless
otherwise provided by law, all procedures and hearings
required for an original petition are applicable to a
subsequent petition under this section.” (§ 342, subd. (b).)
Those procedures include detention and jurisdiction and
disposition hearings pursuant to section 300. (In re B.P.
(2020) 49 Cal.App.5th 886, 890.)
At the trial court level, the burden of proof for
jurisdictional findings is preponderance of the evidence; for
removal it is clear and convincing evidence. (Cynthia D. v.
Superior Court (1993) 5 Cal.4th 242, 248.) We review both
orders for substantial evidence. (In re D.B. (2018) 26
Cal.App.5th 320, 328 (D.B.); In re I.J. (2013) 56 Cal.4th 766,
773 (I.J.); see In re V.L. (2020) 54 Cal.App.5th 147, 155 [for
substantial evidence review of a disposition order, “the
question before the appellate court is whether the record as
a whole contains substantial evidence from which a
reasonable factfinder could have found it highly probable
that the fact was true”].) In construing the record, “‘“we
draw all reasonable inferences from the evidence to support
the findings and orders of the dependency court; . . . issues of
12
fact and credibility are the province of the trial court.”’”
(I.J., supra, at p. 773.)
B. Jurisdictional Findings
Mother contends insufficient evidence supports the
trial court’s findings that her mental illness posed a serious
risk of harm to the children. We disagree.
Juvenile dependency proceedings are intended to
protect children who are currently being abused or
neglected, “and to ensure the safety, protection, and physical
and emotional well-being of children who are at risk of that
harm.” (§ 300.2, subd. (a).) As relevant here, section 300,
subdivision (b)(1) authorizes a juvenile court to exercise
jurisdiction over a child if it finds that the child has suffered,
or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately
supervise or protect the child, or the inability of the parent
to provide regular care for the child due to mental illness.
(§ 300, subds. (b)(1)(A), (b)(1)(D).)
A jurisdictional finding under section 300, subdivision
(b)(1) requires proof of three elements: “(1) the parent’s . . .
neglectful conduct or failure or inability to protect the child;
(2) causation; and (3) serious physical harm or illness or a
substantial risk of serious physical harm or illness.” (In re
Cole L. (2021) 70 Cal.App.5th 591, 601 (Cole L.); see In re
Joaquin C. (2017) 15 Cal.App.5th 537, 561 [“section 300,
subdivision (b)(1) does not require that a parent commit
13
neglect or deserve blame . . . , only that an actual inability to
provide the necessary supervision or protection exists”].) For
jurisdiction to be appropriate, the substantial risk of serious
physical harm or illness must exist at the time of the
jurisdictional hearing. (In re D.L. (2018) 22 Cal.App.5th
1142, 1146.)
The juvenile court in this case cited mother’s erratic
and aggressive behavior as evidence of ongoing mental
health issues that placed the children at risk of harm at the
time of the jurisdiction hearing. Substantial evidence
supports these findings.
Several individuals voiced concern about mother’s
mental health, including father, Donna S., social workers,
and police officers. Mother made ongoing and unfounded
allegations of sexual abuse against father both to DCFS and
her own medical providers, yelled obscenities at social
workers and law enforcement officers, coached the children
to lie about allegations of sexual abuse, and restricted T.B.’s
access to mental health services. Against court orders,
mother did not adhere to her family maintenance case. She
refused to participate in mental health services and
stonewalled any attempts by DCFS to obtain her medical
records. (Accord, In re G.C. (2020) 48 Cal.App.5th 257, 265
[jurisdictional findings upheld as based on unresolved
mental health issues and failure to complete family
maintenance case].)
Mother also expressed divergent intentions with
respect to child custody. Several times during the family
14
maintenance period, mother vacillated between withholding
T.B. from father, whom she accused of sexual abuse, and
completely relinquishing T.B. to father’s care. During a
custody exchange in March 2022, mother screamed
obscenities at law enforcement and a social worker while the
children watched the incident “petrified.” On another
occasion, mother left the children alone with a family
relative known to have mental instability. From this
behavior, we discern considerable uncertainty as to mother’s
ability to provide regular and adequate care for both
children.
And though it is true that there was no finding that the
children suffered physical harm from mother’s conduct, “the
court need not wait until a child is seriously abused or
injured to assume jurisdiction and take steps necessary to
protect the child.” (In re Christopher R. (2014) 225
Cal.App.4th 1210, 1216; accord, Cole L., supra, 70
Cal.App.5th at pp. 601–602.) “It is not necessary for DCFS
or the juvenile court to precisely predict what harm will
come to [the children] because [m]other has failed to
consistently treat her illness. Rather, it is sufficient that
[m]other’s illness and choices create a substantial risk of
some serious physical harm or illness.” (In re Travis C.
(2017) 13 Cal.App.5th 1219, 1226–1227.) Substantial
evidence supports the court taking jurisdiction over the
children.
15
C. Disposition Order
Mother makes similar arguments challenging the
court’s findings that removal of the children was necessary.
Again, we disagree.
Before a child may be ordered physically removed from
parental custody, the juvenile court must find by clear and
convincing evidence that: (1) a substantial danger exists to
“the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned
home [to the parent],” and (2) there are no reasonable means
to protect the minor’s health without removing the minor
from the parent’s physical custody. (§ 361, subd. (c)(1).) As
mother herself concedes, the former inquiry is made as to
the child’s physical and emotional health and well-being.
(See In re H.E. (2008) 169 Cal.App.4th 710, 720 (H.E.) [“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’”].)
In determining whether a child may be safely maintained in
a parent’s physical custody, the juvenile court may consider
the parent’s past conduct, his or her response to the
conditions that gave rise to juvenile court intervention,
current circumstances, and any reasonable protective
measures and services that can be implemented to prevent
the child’s removal from parental custody. (D.B., supra, 26
Cal.App.5th at p. 332.)
Considering the children’s tender age, the trial court
found clear and convincing evidence that mother’s behavior
16
posed a substantial risk to the children’s health or emotional
well-being if left in mother’s care. Substantial evidence
supports this finding.
The record reveals multiple instances in which
mother’s behavior harmed the children’s safety and well-
being. Between April 2021 and February 2022, mother took
T.B. to the hospital to make unsubstantiated allegations of
sexual abuse against father and his girlfriend, subjecting
T.B. to repeated examination. Open, repeated, and
unfounded charges of sexual abuse against the other parent
are inappropriate and emotionally damaging to children.
(H.E., supra, 169 Cal.App.4th at p. 724 [“[E]xposing young
children to constant tirades and accusations of such a
charged nature could only cause harm and do them no
good”].) Further, mother coached the children to lie about
father’s use of alcohol and acted aggressively towards police
officers and a social worker in their presence.
Mother’s behavior had a manifest impact on the
children. L.J. exhibited aggressive behavior and was
disenrolled from school for being “chronically absent,” much
to her detriment. T.B. also displayed aggressive behavior,
and as of the date of disposition, a psychological assessment
recommended further mental health services for T.B.
However, mother declined such services, despite their
potential benefit to T.B.’s emotional health. Thus,
17
substantial evidence supports the court’s removal finding in
this case. 9
DISPOSITION
The jurisdictional findings and disposition orders are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
CURREY, P. J.
COLLINS, J.
9 Mother does not challenge the court’s finding that there were no
reasonable means by which the children’s health could be protected
without removing them from mother’s custody. (See § 361, subd.
(c)(1).)
18