Filed 5/6/21 In re F.M. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 F.M., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E075407
Plaintiff and Respondent, (Super.Ct.No. SWJ003049)
v. OPINION
Y.S.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael J. Rushton,
Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and
Prabhath D. Shettigar, Deputy County Counsel for Plaintiff and Respondent.
1 In this appeal Y.S. (mother) challenges the juvenile court’s jurisdictional and
dispositional orders regarding her now five-year-old daughter, Frankie M. After
sustaining three jurisdictional allegations against mother related to substance abuse,
domestic violence, and failure to protect from sexual abuse, the juvenile court declared
Frankie a dependent, removed her from mother’s care, and ordered the Riverside County
Department of Public Social Services (the department) to provide family reunification
services. Mother argues these orders lack evidentiary support because she does not
currently pose a risk to her daughter. We disagree and affirm.
I
FACTS
A. Background
Mother has a both a criminal and child welfare history. In 2004, the department
filed dependency petitions on behalf of her three oldest children, Steven, Thomas, and
Destiny. The department alleged mother physically abused Destiny, committed acts of
domestic violence against the children’s fathers, and had a history of drug abuse. When
the social worker visited the home, she suspected mother was under the influence and
also found “a multitude of bruises” on Destiny, “in varying degrees of color.” In addition
to several bruises on her arms in the shape of fingerprints, the social worker found a
bruise on both of Destiny’s cheeks, a cut near her left eye, a large bruise on her chin, a
dark bruise on her buttocks, and a bruise on the middle of her back near one of her
vertebra. Destiny and her two brothers told the social worker that mother would beat her.
2 The juvenile court exercised dependency jurisdiction over all three children and
ultimately granted sole physical custody of the children to their fathers. The court also
issued a restraining order against mother.
For her abuse of Destiny, mother was convicted of misdemeanor inflicting injury
on a child in March 2004. She was sentenced to 180 days in jail, a 52-week anger
management program, and a drug rehabilitation program. In May 2004, she was
convicted of felony inflicting corporal injury on a cohabitant and sentenced to additional
jail time and another anger management and drug rehabilitation program. In October
2004, she was convicted of misdemeanor battery. In 2006, she was convicted of felony
assault with a deadly weapon and was sentenced to 270 days in jail and another anger
management program.
Over the next several years, mother had three more children: Laila (born in 2009)
and Jayde (born in 2011) whose father is George, and Frankie—the subject of the current
dependency—whose father is Robert (father).1 In 2016, the department filed a
dependency petition on behalf of all three children after Frankie tested positive for
amphetamines at birth. Mother told the social worker she had run away from home at age
15 and, until she was about 25, had lived on the street and used drugs. She said she had
been using methamphetamine but had checked herself into a treatment program about
seven months earlier and no longer had a problem. She said the only reason she had used
during Frankie’s pregnancy was that she was under a lot of stress.
1 Though the juvenile court made a jurisdictional finding against father in this dependency, he has not challenged it and therefore isn’t a party to this appeal. 3 Mother also admitted there were domestic violence issues between her and father
but said he would always end up leaving before she had to call the police. Father
expressed surprise when the social worker told him Frankie had tested positive for
amphetamines. He said he knew mother used to struggle with drug abuse but thought it
was behind her. He said he’d already decided to break up with her anyway because she
constantly lashed out at him and tried to provoke fights. He hoped they could
successfully coparent Frankie, but not if she continued to use drugs.
The juvenile court removed all three children from mother and placed them with
their fathers. It ordered family reunification services for mother, which included drug
testing and treatment and an anger management program. After several months of
services, the court terminated the dependency by returning Frankie to both parents and
issuing family law orders granting George primary custody of Laila and Jayde.
B. The Current Dependency Petition
Frankie came to the department’s attention again on November 15, 2019, when
she was three years old. A referral alleged that the maternal uncle, Gabby, had touched
Frankie’s privates, and that mother had taken the child from the hospital before she could
be examined. According to a nurse who had spoken with father, Frankie told him that
Gabby had touched her and her privates hurt. Father checked and thought her vagina
looked swollen and red so he took her to the emergency room at Hemet Valley Hospital,
but mother had shown up and taken her away before she could be seen. Father said when
he contacted the police about the incident they said they couldn’t do anything because
4 mother shared custody of Frankie and they didn’t know where she was. Father also told
the nurse that he had moved in with mother to keep an eye on his daughter because
mother uses methamphetamine and would leave Frankie “in anyone’s care.”
After multiple unsuccessful attempts to speak with the parents, the social worker
received a call from father on November 25. He said mother had ended up taking Frankie
to a different hospital to have her examined because she didn’t like Hemet Valley. He
said he and mother live in different units on the same property.
The social worker wasn’t able to set up a meeting with the family until January 27,
2020. In his separate interview, father reiterated his concern that Gabby had molested
Frankie. He said he was upset with mother because it seemed like she was trying to cover
for Gabby who had touched other family members in the past. Mother admitted Gabby
had molested other family members but said she didn’t think he had touched Frankie. She
also admitted having a history of using methamphetamine.
That same day, the social worker also spoke with Laila and Jayde. They said they
had heard about Gabby having molested Frankie and, as a result, their father (George) no
longer allowed them to go to Gabby’s house. Two days later, father told the social worker
he thought mother was using drugs again.
The social worker contacted law enforcement and learned that mother and father
had recently made several domestic violence reports against each other. On November
15, the day father had taken Frankie to the hospital, mother had called the police to report
he had pushed her and punched her in the leg two days earlier. The dispatcher had noted
5 mother had sounded under the influence during the call. Mother also went to the Hemet
Police Department that day to make the same report. On December 1, she called the
police to report that father was trying to take her TV. On January 17, she called the police
to report that two of her exes (one of which was father) were at her home “disturbing the
peace,” but no one was home when the police responded. On January 25, George called
the police to report that mother had taken one of his daughters and would not return her.
On January 26, mother called the police to report father was being violent and arguing
with her “in front of [her] children,” but she ended up cancelling the call saying he had
left.
A few days after the in-person interviews, on January 30, the social worker asked
the parents to drug test. Mother refused, saying she hadn’t used for eight months. She
said she had checked herself into a recovery program but quit because “it was not for
me.” Mother told the social worker, “you need to focus on my daughter being sexually
abused and not [on] me.”
About a week later, the social worker spoke with George, who said he was worried
mother was using methamphetamine again and engaging in domestic violence with
father. He said that on January 25, one of his daughters called him because mother and
father were physically fighting with each other in front of her. George said mother’s drug
use and fighting with father had caused him to recently seek sole custody of Laila and
Jayde in family court and the hearing on his request was scheduled for April.
6 On February 5, father texted the social worker saying mother was acting erratic
and appeared to be high on methamphetamine. He said she was supposed to be caring for
Frankie that day but hadn’t been home for hours. The social worker went to the home the
next day but no one was there. She ended up speaking with father later that day, and he
told her he was very concerned about mother’s recent behavior and wanted to seek full
custody of Frankie.
On February 12, father sent the social worker an angry text saying the department
had not done enough to investigate Frankie’s molestation. He asked the social worker to
leave him and Frankie alone and said he wouldn’t respond to calls or texts. He said
everything was fine with his family now and that it turned out mother hadn’t actually
been on drugs the other day, she had been taking medication to treat a bladder infection.
On February 14, the department filed a dependency petition on behalf of Frankie,
alleging she was a child as described by Welfare and Institutions Code section 300,
subdivision (b) (failure to protect).2 The petition made the following three allegations: (1)
mother had a history of substance abuse, had admitted to recently using
methamphetamine, and had failed to benefit from a treatment program; (2) mother and
father engaged in domestic violence in Frankie’s presence; and (3) Frankie was at
substantial risk for sexual abuse as a result of mother’s failure to protect her from Gabby.
2 Unlabeled statutory citations refer to the Welfare and Institutions Code. 7 C. Detention
The juvenile court held the detention hearing on March 2, 2020. Mother was not
present and father (who was) said she and Frankie were home sick. The court trailed the
hearing for the following day and ordered the department to go to the home to check on
mother’s health and give her a saliva drug test. Mother’s test was positive for
methamphetamine.
Mother didn’t attend the hearing the next day either. The court said it found her
behavior of taking Frankie from the hospital before she could be examined for sexual
abuse “extremely concerning,” especially considering she has been using
methamphetamine. The court detained Frankie from mother and ordered father not to let
her have any contact with the child. The court ordered weekly supervised telephone or
video chat visits for mother.
On March 17, father met with the social worker at the department’s office in
Hemet and reiterated his concern they were taking too long to investigate Frankie’s report
of sexual abuse. He said he worried about submitting his daughter to another interview or
exam because she hadn’t mentioned the abuse since she reported it, and he didn’t want
her to have to think or speak of it again. The social worker told him that a forensic
interview was important, and he ultimately agreed he’d let Frankie sit for one as soon as
it was safe to do so due to the COVID-19 pandemic.
That same day, an officer from the Hemet Police Department interviewed father
about the alleged sexual abuse. Father said that on the day of the incident mother had left
8 Frankie alone with her sister and her sister’s husband, Gabby. After mother picked
Frankie up and dropped her off with father for the evening, Frankie told him Gabby had
touched her and that her privates hurt. He then recounted how he had taken Frankie to
Hemet Valley Hospital and mother had taken her and “fled.” Father said he had found
mother later that day at Menifee Valley Hospital, where they found no evidence of
“sexual penetration.” He said Frankie was now in his sole custody and he was not
allowing her to be near Gabby.
On March 18, the department referred mother to a drug treatment program, as well
as domestic violence and parenting classes.
On March 30, the social worker interviewed the parents about the petition
allegations for the department’s jurisdiction and disposition report. Mother told the social
worker she hadn’t started services yet but intended to. She said father had come to her
home two days earlier, “ripped” Frankie from her arms and refused to give her back. The
social worker informed mother that Frankie had been removed from her care on March 3
and that she was violating the court’s order if she was seeing her daughter outside of
supervised visits. At this point, mother became upset and questioned why the court gave
Frankie to father. She said he was abusive and has beat her black and blue before while
she was holding Frankie. She said she used to have pictures and videos proving his abuse
but he’d destroyed them when he broke her phone.
Regarding the allegations of failure to protect from sexual abuse, mother told the
social worker that she has been very protective. She said she had already taken Frankie to
9 the hospital once to be examined for sexual abuse even before the department had
become involved, in September 2019. She said this was the reason she had taken Frankie
from the hospital two months later when father had brought her in for examination: she
didn’t think her daughter should “have to go through that again.” She said nothing about
not liking that hospital and taking Frankie to a different one (which is what father said
happened).
In his interview, father tried to explain the incident from two days earlier. He said
he’d been walking outside his unit with Frankie when mother appeared, grabbed the
child, and would not let her go. He said he and Frankie had been staying with a relative in
Visalia since that incident to avoid in-person contact with mother. He said mother was a
drug addict and habitual liar who couldn’t be trusted.
The social worker later learned that on March 28 father called the police to report
mother had taken Frankie even though she was not supposed to have custody. She also
learned that on the following day mother had called the police to report that father had
ripped Frankie from her arms the previous night.
On May 4, mother sent the social worker a text saying she’d been documenting
everything and the social worker was “going to be in trouble” for listening to father but
not her. In response, the social worker called mother, who picked up and said she
couldn’t talk because she was at work. The social worker then texted her asking her to
take a urine test that day, to which mother responded, “Sorry I would but I’m not in
town.” Mother said the social worker instead “need[ed] to investigate the father and how
10 he is using Frankie to get at me.” The exchange ended with mother telling the social
worker that she didn’t trust her and wanted a new social worker.
That same day, father texted the social worker saying the only reason he had been
around mother for so long was to keep Frankie safe. He said he felt he had to stay close
by because mother would “leave Frankie with different family members [and] get high.”
On May 5, the detective investigating Frankie’s criminal case called the social
worker to report that he had to close the case for lack of evidence because Frankie had
not disclosed any inappropriate touching or sexual abuse during her recent forensic
interview.
On May 18, Frankie’s therapist reported that Frankie’s mental health assessment
and first therapy session had gone well.
On May 28, the parents and Frankie attended a child and family team meeting by
teleconference with the social worker and a meeting facilitator. During the meeting,
mother began ranting and denigrating father’s parenting abilities. The facilitator had to
redirect her and ask her to remain calm, but when they started talking about Frankie’s
education, she became angry again and yelled and cursed at father. When the facilitator
asked her to calm down and reminded her that Frankie was present, she became even
more angry and said the meeting was “pointless and a waste of her time.”
About a month later, the social worker met with father and Frankie through video
chat. Frankie appeared healthy and happy. She said she liked swimming and going to the
park and had her own bed to sleep in at her relative’s home. Father told the social worker
11 that Frankie was doing great. She had been to the doctor and the dentist, and she was
healthy and up to date on her vaccinations. He sent the social worker documentation from
her dental visit and wellness check confirming this.
On May 28, father’s and Frankie’s therapist told the social worker that they had
both been participating in counseling services. On July 1, mother texted the social worker
saying she had started attending individual therapy but didn’t respond when the social
worker asked for a letter of enrollment and for the therapist’s phone number. On June 9,
the social worker received the results of a drug test mother had taken on May 25; they
were negative.
Mother’s visits in the month of June did not go particularly well. On June 10,
although she had confirmed the visit earlier that day, she did not answer her phone when
the supervising social worker made multiple attempts to start the visit. Mother later called
the social worker and yelled at her for cancelling the meeting. The social worker was
unable to talk over mother’s yelling so she hung up. This was the third visit mother had
missed. In the weeks that followed, mother missed another visit without explanation, then
called the social worker the next day to say her phone was turned off. Another visit had to
be cut short because she tried to bring her new boyfriend onto the video chat.
Before the jurisdiction and disposition hearing, the department filed a report
recommending the court remove Frankie from mother with family reunification services
and allow her to remain in father’s care.
12 D. Jurisdiction and Disposition Hearing
The court held the jurisdiction and disposition hearing on July 8, 2020. Mother
provided the following stipulated testimony: “I previously had issues with substance
abuse but recently had a negative hair follicle test, and I’ve been sober for a while. I deny
being the aggressor for any domestic violence incidents. I brought Frankie to the doctor
in Menifee after the incident with the uncle, and Frankie has not had contact with the
uncle since that incident.”
The court found the petition’s allegations true, declared Frankie a dependent,
found that mother had made insufficient progress on her case plan, and found that
Frankie could not safely be returned to her care. The court ordered family reunification
services for mother and family maintenance services for father.
II
ANALYSIS
Mother challenges the evidentiary support for the court’s jurisdictional and
dispositional findings and orders.
A. Applicable Legal Principles
“‘A dependency proceeding under section 300 is essentially a bifurcated
proceeding.’” (In re E.E. (2020) 49 Cal.App.5th 195, 205 (E.E.).) First, the court
determines whether the child is subject to its jurisdiction—that is, whether the child falls
within any of the descriptions set out in section 300. As relevant here, section 300,
subdivision (b)(1) authorizes a juvenile court to assert jurisdiction over a child if the
13 “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 . . . to
adequately supervise or protect the child.” (Italics added.) The burden is on the agency to
demonstrate the following three elements by a preponderance of the evidence: “(1)
neglectful conduct, failure, or inability by the parent; (2) causation; and (3) serious
physical harm or illness or a substantial risk of serious physical harm or illness.” (In re
L.W. (2019) 32 Cal.App.5th 840, 848.)
If the court exercises jurisdiction over the child, it moves to the second part of the
proceeding, deciding the appropriate disposition for the child and family. “Generally, the
court chooses between allowing the child to remain in the home with protective services
in place and removing the child from the home while the parent engages in services to
facilitate reunification.” (E.E., supra, 49 Cal.App.5th at p. 205.) The court may remove
the child from parental custody at disposition if it finds, by clear and convincing
evidence, that a return home would pose a substantial danger to the child’s physical
health and there are no reasonable alternatives to removal. (§ 361, subd. (c)(1).)
We review jurisdictional and dispositional findings and orders for substantial
evidence, “contradicted or uncontradicted,” bearing in mind the heightened burden of
proof for a removal order. (In re R.T. (2017) 3 Cal.5th 622, 633; In re Kristin H. (1996)
46 Cal.App.4th 1635, 1654 (Kristin H.).) Because issues of fact and credibility “are the
province of the trial court,” we do not reweigh the evidence but rather review the record
in the light most favorable to the court’s determinations and draw all reasonable
14 inferences from the evidence to support the judgment. (In re R.T., at p. 633.) The
appellant has the burden of showing there is no evidence of a sufficiently substantial
nature to support the findings or orders. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B. Jurisdiction
As a preliminary issue, mother acknowledges that regardless of the outcome her
appeal can have no practical effect on the juvenile court’s decision to exercise
dependency jurisdiction over Frankie. This is because “a single jurisdictional finding
supported by substantial evidence is sufficient to support jurisdiction,” and neither she
nor father contests the jurisdictional finding against him—that his engaging in domestic
violence with mother places Frankie at risk of substantial harm. (In re M.W. (2015) 238
Cal.App.4th 1444, 1452.) Mother asks us, however, to exercise our discretion to reach the
merits of her appeal, and the department argues we shouldn’t. Because the jurisdictional
findings against mother serve as the basis for the dispositional order she also challenges
on appeal, and because the findings could impact the current or future dependency
proceedings at a point when they’re insulated from appellate review, we will exercise our
discretion to review them. (See, e.g., Ibid. [exercising discretion to review jurisdictional
findings for same reasons]; In re Drake M. (2012) 211 Cal.App.4th 754, 763 [same].)
1. The substance abuse finding
Mother argues we should reverse the jurisdictional finding that her drug use poses
a risk of substantial harm to her daughter. She says her issues with methamphetamine are
15 in the past and that her mere use of the drug during this dependency proceeding is an
insufficient basis for asserting jurisdiction. We disagree.
Although mother testified at the hearing that she was sober and hadn’t used
methamphetamine since she’d tested positive on the day of the detention hearing, the
court could disbelieve her based on other evidence in the record. By her own admission
and as evidenced by the 2016 dependency, mother has a long history of using
methamphetamine. She has also been dishonest and evasive about the extent of her drug
use in this case. She told the social worker at the beginning of this case that she had
stopped using methamphetamine several months earlier, but then refused to drug test, and
not long after tested positive. Instead of viewing the positive test as a wake-up call to
start monitoring her drug use and seeking treatment, mother avoided drug testing two
months later when the social worker asked her to test and she claimed she was out of
town (despite telling the social worker moments earlier that she was at work).
Mother’s evasive behavior and failure to acknowledge she has a drug problem
provides a sufficient basis for the court to disbelieve her claim of sobriety. (See Kristin
H., supra, 46 Cal.App.4th at p. 1654 [concluding the mother “exhibited the classic
symptoms of the substance abuser” by resorting to drugs “[i]n times of stress” and
“denying any such drug use, despite overwhelming evidence to the contrary”].) But the
court also had evidence of others saying they believed she was actively using during this
dependency. Father and George both expressed concern she had recently been using
methamphetamine, and the social worker learned from police records that the dispatcher
16 who took mother’s November 15, 2019 call thought she seemed under the influence.
Mother points to the fact her daughters Laila and Jayde said they never saw her do drugs,
but the girls did not live with mother and, in any event, the court didn’t have to give their
observations more weight than father’s or George’s.
As to mother’s claim her drug use doesn’t pose a risk to Frankie, again, on this
record, the court could conclude otherwise. There was no evidence that mother would
arrange for safe childcare for Frankie when she was using methamphetamine. The record
instead indicates the opposite. Father told the social worker on multiple occasions that
mother would leave Frankie with anyone so she could get high. In February 2020, while
the department was still investigating the family, father reported that mother had been
gone for most of the day, even though Frankie was home and she was supposed to be
watching her. He reported that when mother did come home she seemed high on
methamphetamine. And, most concerning, mother left Frankie in Gabby’s care despite
knowing he had inappropriately touched other family members in the past. From this
evidence, the court could reasonably infer mother’s drug use impaired her judgment to
the point she would leave her three-year-old daughter either unattended or in the care of a
known child molester.
But in any event, section 300, subdivision (b) does not require that a child actually
be harmed or neglected before the juvenile court can assume jurisdiction, only that there
is a substantial risk the child will be harmed or neglected. (§ 300, subd. (b); see also In re
I.J. (2013) 56 Cal.4th 766, 773.) “The legislatively declared purpose of [section 300] ‘is
17 to provide maximum safety and protection for children who are currently . . . being
neglected . . . and to ensure the safety, protection, and physical and emotional well-being
of children who are at risk of that harm.’ (§ 300.2, italics added.) ‘The court need not
wait until a child is seriously abused or injured to assume jurisdiction and take the steps
necessary to protect the child.’” (In re I.J., at p. 773.) Additionally, California’s
dependency law recognizes that, when it comes to children of “tender years” (six years
and under), the absence of adequate supervision and care poses an inherent risk to their
physical health and safety. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re
Christopher R. (2014) 225 Cal.App.4th 1210, 1216.) Here, the evidence that mother was
using methamphetamine while caring for a three-year-old child, refusing to admit the
extent of her problem, and trying to evade testing is sufficient to support the jurisdictional
finding.
Mother’s reliance on cases where the drug use was determined to be insufficient to
support jurisdiction is unhelpful because those cases are easily distinguishable from hers.
In In re Destiny S. (2012) 210 Cal.App.4th 999, the only evidence of methamphetamine
use was from a decade-old referral that mother used methamphetamine, which the agency
closed after a brief investigation. (Id. at p. 1004.) In In re L.C. (2019) 38 Cal.App.5th
646, the minor’s legal guardian admitted to using methamphetamine on occasion (and
only after he arranged for appropriate child care), and once he learned he could lose
custody, he immediately began drug testing (on his own initiative) and participating in
substance abuse treatment. (Id. at p. 650.) In In re J.A. (2020) 47 Cal.App.5th 1036, the
18 mother admitted to using edible marijuana while pregnant, “to address her pregnancy
symptoms, after having researched that it was a relatively safe alternative,” but the
evidence demonstrated she had stopped using as soon as the agency told her to. (Id. at
p. 1047.)
The obvious difference with mother’s case is that she used while pregnant with
Frankie, has been dishonest about the extent of her use during this dependency, and has
been evasive and uncooperative about drug testing. Whereas, in the cases she relies on,
the parents and guardians were honest and responsive. They admitted the extent of their
use, stopped using, and, in the case of In re L.C., immediately began treatment. These
differences are crucial.
We view mother’s behavior as closer to that of the mother in In re Christopher R.,
who had lied about using cocaine during her pregnancy. And, like here, she argued on
appeal that “the evidence of her sporadic drug use was insufficient to support the findings
she was a current substance abuser and [that her other three children] were at substantial
risk of serious physical harm justifying the exercise of the juvenile court's jurisdiction.”
(In re Christopher R., supra, 225 Cal.App.4th at p.1215.) The appellate court rejected this
argument, reasoning the juvenile court was free to disbelieve her claim of sporadic drug
use, based on her conduct during the case. “[The mother] used cocaine (and, based on the
positive toxicology screen for [the infant] at birth, amphetamine and methamphetamine)
while she was pregnant, unquestionably endangering the health and safety of her unborn
child. She also admitted she had used cocaine in the past although claiming she had
19 stopped using when she was 17 years old. Given her initial false denial of any cocaine
use in the days before [her youngest] was born, the juvenile court reasonably disbelieved
[her] portrayal of limited, sporadic drug use. . . . This evidence, taken together with [her]
unstable lifestyle and cavalier attitude toward childcare . . . fully supports the juvenile
court's [jurisdictional] finding.” (Id. at p. 1217.)
We uphold the finding based on the evidence of mother’s history of
methamphetamine use, current use, and refusal to acknowledge her problem or
consistently drug test.
2. The domestic violence finding
Mother argues we must reverse the jurisdictional finding based on domestic
violence because her conflicts with father are verbal only and don’t involve any physical
violence. She says her “high conflict relationship” with father may pose a danger to
Frankie’s emotional health, but not her physical safety.
The problem with mother’s argument is that her own statements to the police and
the social worker demonstrate otherwise. As we’ve seen, she called the police on father
several times during this case, and at least two of her reports were of physical violence.
On November 15, she reported father had recently pushed and punched her. On January
26, she reported he was being violent in front of the children. About a month after
detention, she told the social worker that father would physically beat her while Frankie
was in her arms and had recently ripped Frankie from her arms. In addition to her own
statements, mother’s criminal record shows she has a history of engaging in assaultive
20 behavior that has resulted in a series of court-ordered anger management programs.
Domestic violence is a longstanding issue for mother.
We therefore conclude the record sufficiently supports the jurisdiction finding.
3. The finding of failure to protect against sexual abuse
Mother argues we must reverse the jurisdictional finding for failure to protect
Frankie from sexual abuse because, by the time of the hearing, Frankie “was not allowed
to visit with the alleged perpetrator.” We are not persuaded.
First of all, if Frankie is not currently allowed to be around her uncle Gabby, it is
because father is being protective, not mother. Second, the fact mother left her three-
year-old daughter in a known child molester’s care—especially when, just two months
earlier, she had her daughter examined for sexual abuse—is cause for legitimate concern
over her ability to protect.
Mother’s justification for preventing the medical examination after Frankie
reported abuse was that she didn’t think a child should have to go through that process
more than once. This is also concerning from a protectiveness standpoint. It allows the
juvenile court to infer that mother sees the investigation of sexual abuse as more
traumatizing than the abuse itself, or that she places more importance on avoiding the
uncomfortableness of investigation than discovering and preventing abuse.
The bottom line is that even if there were evidence to support mother’s argument
that she is the one not allowing Frankie to be near Gabby, the fact she had previously left
21 her in his care, given what she knew at the time, is enough to support a finding of current
risk.
C. Disposition
Mother argues we must reverse the court’s removal order because there was
insufficient evidence that, by the time of the hearing, she could not safely care for
Frankie. She argues that she had been sober for four months and also that her ability to
reunify with Frankie in the previous dependency shows that a juvenile court has already
determined she can safely care for her daughter.
But the focus of a court’s decision whether to return or remove a child is the
current state of the home and the parents’ current circumstances. Mother’s ability to
reunify with Frankie three years earlier is irrelevant to her present parenting abilities.
Much more relevant to her present circumstances is the fact she has so far failed to take
any steps to address the issues that led to jurisdiction.
As we’ve just discussed, the juvenile court reasonably found that mother currently
poses a risk to Frankie’s safety for three reasons—her use of methamphetamine, her
tendency to engage in or be the victim of domestic violence, and her inability to protect
Frankie from a dangerous family member. Now, contrary to the department’s assertion,
these findings are not prima facie evidence to support removal. (See E.E., supra, 49
Cal.App.5th at p. 218 [reminding the agency that jurisdictional findings are not prima
facie evidence to support removal unless the court has adjudicated the child a dependent
under § 300, subd. (e) (severe physical abuse)].) However, the fact mother has these
22 issues in addition to her refusal to acknowledge them or participate in any services to
address them is what supports the removal order. A parent may suffer from issues that
warrant asserting jurisdiction over their child, but they can also proactively address them
to the point the court feels safe allowing the child to return to their care. That is not what
happened here.
Far from addressing her issues, mother has been in denial that she has any, telling
the social worker on multiple occasions that she should stop hassling her and focus
instead on father’s issues. She maintained she didn’t have a drug problem even though
she had tested positive, and had, by her own admission, recently dropped out of a
treatment program. At times mother has even seemed to be in denial of the dependency
proceeding itself, violating the court’s order against unsupervised contact on at least two
occasions. (See Kristin H., supra, 46 Cal.App.4th at p. 1658 [concluding mother’s refusal
to acknowledge her substance abuse issues and “refus[al] to cooperate with
professionals” supported a finding that her child-endangering behavior would “reoccur”
if her daughter were returned to her care].)
Mother argues that by the time of the hearing she had started therapy, but
unfortunately for her, that is a relatively small portion of what she needs to do to address
the full scope of her parenting issues. “The trial court is in the best position to determine
the degree to which a child is at risk based on an assessment of all the relevant factors in
each case.” (In re Drake M., supra, 211 Cal.App.4th at p. 766.) On this record, we
conclude the removal order is appropriately protective and supported by the evidence.
23 III
DISPOSITION
We affirm the appealed orders.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
RAMIREZ P. J.
MILLER J.