In re A.G. CA4/2

Opinion

Filed 12/30/20 In re A.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.G. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E075211

Plaintiff and Respondent, (Super.Ct.No. RIJ115183)

v. OPINION

E.B.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Judge. Affirmed.

Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and

Appellant.

Gregory P. Priamos, County Counsel, and James E. Brown, Anna M. Marchand,

and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.

1 E.B. (mother) appeals the juvenile court’s dispositional order removing her two

youngest children from her custody and denying reunification services under the bypass

provision in Welfare and Institutions Code section 361.5, subdivision (b)(10). As we

explain below, we find no error and affirm.

I

FACTS

A. Child Welfare History

Mother is a single parent with five children: a 17-year-old daughter A.B., twin 13-

year-old sons C.E. and C.Z., a six-year-old daughter A.G., and a five-year-old son J.G.1

A.B.’s father is Eduardo G., the twins’ father is Clarence D., and A.G. and J.G.’s father is

Jonathan G. This appeal concerns the two youngest children, A.G. and J.G.

Mother has an extensive but mostly minor criminal history from 2006-2009, which

includes convictions for driving under the influence, driving with a suspended license,

providing false identification to a police officer, and vandalism with damage greater than

$400. She also has two violent crime convictions for assault with a deadly weapon and

misdemeanor battery.

The family has a history with child welfare services. In September 2007, Riverside

County Department of Public Social Services (the department) filed a Welfare and

Institutions Code section 300 petition as to A.B., C.E., and C.Z. based on domestic

1 Because the twins share the same first and last names, we refer to them by their first and middle initials.

2 violence concerns. (Welf. & Inst. Code, § 300, unlabeled statutory citations refer to this

code.) The court ordered that mother be provided family maintenance services.

In July 2008, the department received a referral alleging mother was generally

neglectful and was an absent or incapacitated caretaker. It had been reported that mother

was arrested for aggravated mayhem after she allegedly “ ‘slash[ed]’ ” a woman. The

department found the allegations in the referral substantiated, placed A.B., C.E., and C.Z.

into protective custody, and filed a section 387 petition making the same allegations. The

court found the petition stated a prima facie case and ordered family reunification

services for the parents. The same month, mother was charged with four counts of assault

with a deadly weapon. The court eventually terminated mother’s services at the 18-month

status review hearing, held in February 2010. The court appointed father Clarence D. the

legal guardian for A.B., C.E., and C.Z. The court terminated the dependency as to those

three children in November 2010 while mother was incarcerated for assault with a deadly

weapon.

In August 2011, mother was convicted of assault with a deadly weapon and

sentenced to seven years. She was released in December 2012 and discharged from

parole two years later.

Mother unsuccessfully attempted to terminate the legal guardianship as to all three

children in 2014, and as to A.B. alone in 2018. In January 2019, she successfully

terminated the legal guardianship as to A.B., and received sole physical and legal

custody.

3 B. Facts Leading to the Current Petition

On September 25, 2019, the department received a referral alleging A.B. was

refusing to go home after school because she feared mother would physically assault her.

The referral also alleged mother physically abused A.B. a couple of months prior. The

next day the department received another referral reporting mother had shown up at

A.B.’s high school and harassed her, calling her names and hitting her repeatedly. A.B.

was released to her father, Eduardo G. The following day the department received yet

another referral, reporting A.B. had a fat lip, a cut on her neck, a cut on her arm, and a cut

on her gums from mother’s attack. The department was able to retrieve a video of

mother’s abuse that showed her chasing A.B., grabbing her hair, dragging her by the hair,

and punching and slapping her in the face until school officials intervened.

A social worker interviewed A.B. after the incident on October 1, 2019. A.B. said

her boyfriend assaulted her two weeks prior to the altercation with mother. She reported

that incident to school staff, who reported it to mother. Mother told A.B. not to speak to

the boyfriend, but A.B. had to speak to him as part of the school’s conflict resolution

procedures. When mother found out about this contact, she began sending A.B. text

messages saying she was going to beat her. According to A.B., mother showed up at the

school unannounced, chased her down, hit her, and called her names. A.B. also told the

social worker that she wasn’t sure whether her siblings were safe with mother because

mother could not control her own behavior.

4 A.B. reported earlier incidents of abuse. She said mother slapped and hit her as

discipline four to six times and that one of these incidents prompted a grandmother to

intervene and stop mother. She said mother also hits and slaps A.G. and J.G. to discipline

them.

The same day, the social worker visited mother’s home unannounced. Mother told

the worker “ ‘everything’s fine’ ” multiple times and denied requests to enter the home or

speak to J.G. and A.G. She refused to explain the reason for the incident, or acknowledge

it was a concern. Mother said A.B. was at her father’s and was having a fit and needed to

cool down. Later that day, mother told the social worker over the phone that A.B.’s

“ ‘teenage feelings are hurt,’ ” and claimed A.B. wanted to return to her care.

On October 2, 2019, the social worker contacted father Jonathan G. He said

mother was physically aggressive with him and would slap and verbally berate him while

the children were present. He also claimed mother had been arrested for domestic

violence in 2014. He confirmed mother occasionally slapped A.B., A.G., and J.G. as

discipline. He also confirmed she used derogatory slurs against A.B., repeatedly calling

her a “ ‘bitch’ ” or a “ ‘slut.’ ”

Later that day, the department took A.B., A.G., and J.G. into protective custody. It

filed petitions under section 300, subdivisions (a) and (b) as to A.B. and subdivisions (b),

(g), and (j) as to A.G. and J.G. As relevant here, the petitions alleged mother physically

and verbally abused A.B. and that there was a substantial risk A.G. and J.G. would suffer

similar harm.

5 The social worker spoke to A.G. and J.G. separately once they were in protective

custody. The social worker asked J.G. what happens when he gets in trouble, and he

responded “ ‘Mom said don’t tell you guys sorry.’ ” He eventually admitted he gets

spanked on the butt, and that sometimes mother will “ ‘hold his hair.’ ” He said he

witnessed the incident between A.B. and mother at the school. He denied seeing mother

hit any of his siblings, but also reiterated that “ ‘mommy told not to tell you what her do

to us [sic].’ ”

A.G. told the social worker “mommy told us not to say a word about what she

does to us.” She said mother hits her on her butt and arms as discipline. She also said

mother and Jonathan G. yell at each other often and don’t get along. She said mother had

slapped Jonathan G., hit him in the face, and hit him with a phone charging cord. A.G.

also said she witnessed the incident between mother and A.B. at A.B.’s school. She said

mother would swear at her and J.G. When asked whether she was scared of mother, she

said “ ‘yeah, I mean no,’ ” and added that she was mostly scared when mother hit

Jonathan G.

Later, while together in the car, A.G. and J.G. said mother told them the social

worker was “ ‘bad people’ ” and they shouldn’t talk to her. The social worker asked again

if they ever saw mother slap A.B. A.G. said no, but J.G. said he had and begged the

social worker to believe him over his sister because she was only saying what mother told

them to say. J.G. said mother slapped him twice, and A.G. said mother would spank her

with a belt. Both children said mother slapped the twins.

6 On October 3, 2019, mother told the department she was willing to give up

custody of A.B. if the younger two children were returned to her. The next day, the

department amended the petitions to add allegations that mother and Jonathan G. engaged

in domestic violence in the children’s presence.

On October 7, 2019, the court found A.B., A.G., and J.G. fell within section 300

and detained them from mother. It also issued a temporary restraining order protecting

A.B., Eduardo G., and Eduardo G.’s family from mother.

C. Jurisdiction and Disposition

Between the detention hearing and the jurisdiction and disposition hearing on

October 29, the department conducted further interviews with the parents, children, and

school officials. The information given in these interviews was consistent with the

information from previous interviews. This included A.G. and J.G. reiterating that mother

would hit A.B. and Jonathan G. and tell them not to say anything to social workers. A.G.

and J.G. exhibited aggressive behavior with each other. Mother was not allowed

visitation with A.B. There were also concerns mother was whispering instructions and

details of the case to A.G. and J.G. while playing.

Mother continued to deny any pattern of physical or verbal abuse between her and

A.B. and specifically denied assaulting her daughter at school. She said she was the

victim of domestic violence from Eduardo G., not the perpetrator. She denied disciplining

her children using anything more than time outs and spanking. She said she didn’t believe

she needed any drug testing, counseling, substance abuse treatment, or domestic violence

7 courses. She said “she is willing to do whatever she needs to do to reunify with [A.G.]

and [J.G.], [but] she has no interest in reunifying with [A.B.].”

Jonathan G. expressed concern that returning A.G. and J.G. to mother was

especially dangerous now because the department’s involvement had made her angry and

she “takes ‘her anger out on the people closest to her.’ ” He said he’d seen mother hit J.G.

and A.G. with an open hand on the butt and thigh. He said the hitting was excessive and

mother didn’t know when to stop.

The department also found that police had contact with mother’s family six times

between April 2014 and August 2019, which didn’t count the September incident at

school. Most of these calls concerned alleged or feared domestic violence between

mother and Jonathan G.

Mother began attending anger management, domestic violence, and parenting

classes in late October 2019, and by all accounts was actively participating in those

services.

On December 5, 2019, mother was arrested for the September school incident with

A.B. She was charged with felony willful child cruelty, pleaded not guilty, made bail, and

was released from custody the same day.

The court held a contested jurisdiction hearing on December 10, 2019. It found the

allegations in the petition true and concluded A.G. and J.G. fell within section 300,

subdivision (b)(1). It adjudged them dependents and set a contested disposition hearing

for January 9, 2020.

8 The department filed an additional report prior to the hearing on January 9, 2020.

By that time, mother had completed a nine-week parenting class and was in the process

of completing a 12-week anger management class. During an unannounced home visit on

January 7, mother explained she still didn’t want to try reunifying with A.B. because she

felt she would be “ ‘walking on egg shells’ ” around her daughter. However, she said she

was no longer angry at A.B. Mother’s clinical therapist stated that mother added input in

discussions and that “ ‘her personal growth is clinically encouraging.’ ”

At the hearing on January 9, 2020, the court continued the contested disposition

hearing as to A.G. and J.G., but removed A.B. and placed her with her father Eduardo G.

Mother subsequently completed her 16-week anger management class.

The court held the final contested disposition hearing as to A.G. and J.G. on

February 27, 2020. Mother requested reunification services, argued she was benefiting

from the classes she was taking, and submitted letters from a therapist and group

facilitator corroborating that her participation in those services was regular and engaged.

The court removed A.G. and J.G. from mother’s custody and denied her

reunification services under section 361.5, subdivision (b)(10). Mother timely appealed

the court’s dispositional order.

II

ANALYSIS

Mother argues there is insufficient evidence to support the court’s conclusion that

the bypass provision in section 361.5, subdivision (b)(10), applies to her. In the

9 alternative, she argues the trial court abused its discretion by not ordering reunification

services for her as to A.G. and J.G.

A. The Court Properly Applied the Bypass Provision

Once a court has decided to remove a child or children, it must order family

reunification services “unless [it] finds by clear and convincing evidence that one of the

15 exceptions set forth in section 361.5, subdivision (b), applies.” (In re Albert T. (2006)

144 Cal.App.4th 207, 217 (Albert T.).) The exception at issue here, codified in

section 361.5, subdivision (b)(10), allows the court to bypass reunification services if

“ ‘the court ordered termination of reunification services for any siblings or half-siblings

of the child because the parent or guardian failed to reunify with the sibling or half-

sibling . . . and that, according to the findings of the court, this parent or guardian has not

subsequently made a reasonable effort to treat the problems that led to removal of the

sibling or half-sibling.’ ” (Albert T., at p. 217, italics added.) For the exception to apply,

“the juvenile court must find both that (1) the parent previously failed to reunify with a

sibling and (2) the parent has not subsequently made a reasonable effort to treat the

problems that led to removal of the sibling.” (Id. at p. 217.)

“We review the court’s dispositional findings for substantial evidence.” (In re T.V.

(2013) 217 Cal.App.4th 126, 136.) “ ‘In reviewing a challenge to the sufficiency of the

evidence supporting the jurisdictional findings and disposition, we determine if

substantial evidence, contradicted or uncontradicted, supports them. “In making this

determination, we draw all reasonable inferences from the evidence to support the

10 findings and orders of the dependency court; we review the record in the light most

favorable to the court’s determinations; and we note that issues of fact and credibility are

the province of the trial court.” ’ ”(In re I.J. (2013) 56 Cal.4th 766, 773.)

Here, it’s undisputed that the court previously terminated mother’s reunification

services for three of A.G. and J.G.’s siblings and that mother failed to reunite with all

three children. Therefore, the only question we face is whether substantial evidence

supports the juvenile court’s finding that mother “has not subsequently made a reasonable

effort to treat the problems that led to” the removal of those siblings. (Albert T., supra,

144 Cal.App.4th at p. 217.)

On this record, the court could reasonably conclude mother had not done so. The

root cause of the 2007 dependency was mother’s violent and abusive behavior. When she

ultimately failed to reunify with A.B. and the twins in 2010, she had received

approximately 29 combined months of services: 10 months of family maintenance

services from September 2007 to July 2008, and 19 months of family reunification

services from July 2008 to February 2010. A significant factor in her failure to reunify

was her incarceration for assault with a deadly weapon, a violent crime.

Despite this past, the root cause of the current dependency was also mother’s

issues with domestic violence and abusive behavior towards her family. A.G., J.G., A.B.,

and Jonathan G. all reported she was the aggressor in multiple domestic violence

incidents with the children present. All the children reported she used harsh disciplinary

measures against them, and there is video and testimonial evidence of her assaulting A.B.

11 in public. These incidents demonstrate that mother did not correct her violent behavior

and continued to engage in it around and towards both her children and her intimate

partners in the years between losing custody of the twins and the opening of the current

case.

Nevertheless, mother argues she has since demonstrated a reasonable effort to

resolve these issues by completing several courses during this dependency case. She

points to evidence from the people running those programs and services suggesting she is

making “clinically encouraging” progress as evidence that she is making reasonable

efforts. She argues she is succeeding in these services and succeeding at correcting her

behavior, which is more than the law requires since “the question is not whether mother

is succeeding in treating her issues—it is whether she is trying.”

Mother may very well be benefiting from these services, but on this record the

trial court could reasonably view her recent efforts as too little, too late. The inquiry

under section 361.5 subdivision (b)(10), is whether she made a reasonable effort to

remedy the behavior that led to removal between then and the initiation of the current

dependency, such that we should treat any new case as new rather than just another

manifestation of the same underlying issues. The requirement that a parent make

reasonable efforts is not an inducement to start acting right only after you get caught, it’s

“a means of mitigating an otherwise harsh rule that would allow the court to deny

services simply on a finding that services had been terminated as to an earlier child when

12 the parent had in fact, in the meantime, worked toward correcting the underlying

problems.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 842, italics added.)

Here, even accounting for mother’s most recent improvements, the juvenile court

could properly conclude that she did not make a reasonable effort to improve. In her first

dependency case, she received nearly two and a half years of services. Despite that, she

continued to engage in domestic violence, both against Jonathan G. and her own children,

once released from prison. Police were called to her home six times between 2014 and

2019, each time concerning possible domestic violence. This culminated in her

attacking A.B., and afterwards insisting that the incident wasn’t that serious and that A.B.

was overreacting. All of these behaviors point to mother failing to make reasonable

efforts to identify and correct her propensity for violent behavior between 2010 and

September 2019.

This case is thus distinguishable from Albert T., supra, 144 Cal.App.4th 207 and

Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87 (Cheryl P.), both of which

mother cites as support for her position. Those cases involved parents who were actively

and seriously trying to address the issues that resulted in removal, but who were

unfortunately not making much progress. In Cheryl P., the parents suffered from

cognitive and mental health issues which made it difficult for them to benefit from

reunification services. But despite those difficulties, they continuously demonstrated a

commitment to improving. (Cheryl P., at pp. 91-95.) In Albert T., the mother fully

participated in domestic violence counseling throughout her first dependency case and

13 even thereafter, but nevertheless continued to enter into relationships with abusive men

(where, notably, she was the victim of domestic violence, not the perpetrator). (Albert T.,

at p. 221.) The parents in these cases demonstrated a constant commitment to improving

even as their actual progress left much to be desired. And, unlike mother, the parents in

those cases were not a direct threat to their children.

Here, the record contains no evidence that mother participated in any services to

address her violence issues in the time between the termination of her previous services

and the filing of this case. Mother does not claim she participated in any treatment or

classes between her failure to reunify with A.G. and J.G.’s siblings and the initiation of

this case. In short, there is no evidence she made any attempt to correct the issues that led

to the removal of A.B. and the twins until after the department initiated this case. We

therefore conclude that substantial evidence supports the court’s decision to apply the

bypass provision.

B. Denial of Reunification Services

In the alternative, mother argues the juvenile court abused its discretion in refusing

to order reunification services. “Section 361.5(b)(10) does not require the juvenile court

to deny reunification services, but merely gives it the authority to do so. [Citation.] If the

court finds by clear and convincing evidence that reunification is in the best interest of

the child, it retains authority to order a further round of reunification services.” (In re

Gabriel K. (2012) 203 Cal.App.4th 188, 197.) “The burden is on the parent to show that

reunification would serve the best interests of the child.” (In re S.B. (2013) 222

14 Cal.App.4th 612, 623 (S.B.).) “A juvenile court has broad discretion when determining

whether further reunification services would be in the best interests of the child under

section 361.5, subdivision (c). [Citation.] An appellate court will reverse that

determination only if the juvenile court abuses its discretion.” (In re William B. (2008)

163 Cal.App.4th 1220, 1229.) “ ‘ “The appropriate test for abuse of discretion is whether

the trial court exceeded the bounds of reason. When two or more inferences can

reasonably be deduced from the facts, the reviewing court has no authority to substitute

its decision for that of the trial court.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-

319 (Stephanie M.).) Thus, a juvenile court abuses its discretion when its ultimate

decision is not supported by substantial evidence (In re A.E. (2019) 38 Cal.App.5th 1124,

1141) or “ ‘ “the trial court has exceeded the limits of legal discretion by making an

arbitrary, capricious, or patently absurd determination.” ’ ” (Stephanie M., at p. 318.)

“A court called upon to determine whether reunification would be in the child’s

best interest may consider a parent’s current efforts and fitness as well as the parent’s

history. [Citation.] Additional factors for the juvenile court to consider when determining

whether a child’s best interest will be served by pursuing reunification include the gravity

of the problem that led to the dependency; the strength of the relative bonds between the

child and both the parent and caretakers; and the child’s need for stability and continuity,

which is of paramount concern.” (S.B., supra, 222 Cal.App.4th at pp. 622-623.)

Section 361.5, subdivision (c)(4), also states that a court should take into consideration

“[t]he failure of the parent to respond to previous services,” and “a past history of violent

15 behavior,” when considering whether to extend reunification services despite finding it

has the authority to bypass them.

The court did not abuse its discretion here. It is mother’s burden to demonstrate

that reunification services would be in A.G. and J.G.’s best interest. Her evidence in this

regard is that she has been improving since October 2019 when she started participating

in services and that she and the children share a bond. However, the evidence against

reunification being in their best interest is fairly clear. The record contains evidence

mother has been physically violent towards at least one child in the very recent past and

has a history of being violent with her partners. There is some evidence to conclude she

also implements violent discipline against A.G. and J.G. Moreover, nearly 29 months of

services in her previous dependency case failed to remedy many of these issues. Given

these considerations, the court’s decision to deny reunification services was not arbitrary

or capricious and was supported by substantial evidence.

III

DISPOSITION

We affirm.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS SLOUGH J. We concur:

RAMIREZ P. J.

RAPHAEL J.