Filed 5/25/22 In re R.H. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 R.H. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E078019
Plaintiff and Respondent, (Super. Ct. Nos. J288815 & J288816) v. OPINION C.R.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Affirmed.
John P. McCurley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Svetlana Kauper, Deputy County Counsel, for
Plaintiff and Respondent.
1 I.
INTRODUCTION
C.R. (Mother) is the mother of 11-year-old S.H. and three-year-old R.H. Mother
appeals from the juvenile court’s dispositional order removing the children from her 1 custody (Welf. & Inst. Code, § 361, subd. (c)(1)). Mother contends that there was
insufficient evidence to support the juvenile court’s order removing the children from her
custody, the court misapplied the burden of proof, and there were reasonable means 2 available to protect the children without removing them from her custody. We disagree
and affirm the juvenile court’s order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and
Family Services (CFS) in December 2020 due to the mothers ongoing and contentious 3 custody dispute over the children in family law proceedings. At that time, CFS provided
the mothers with referrals for counseling to address the relationship concerns and their
inability to coparent.
1 All future statutory references are to the Welfare and Institutions Code unless otherwise stated. 2 Mother A.H. (A.H.) is not a party to this appeal. 3 Mother and A.H. were in a registered domestic partnership under Family Code section 297.
2 In February 2021, the family law court temporarily granted primary legal and
physical custody of S.H. to A.H., and primary legal and physical custody of R.H. to
Mother. Mother was granted visitation with S.H. on alternate weekends while A.H. was
granted alternate weekend visits with R.H. Mother and A.H. were ordered to
communicate by means of Talking Parents.
In March 2021, CFS received six different referrals with allegations of physical
and emotional abuse of S.H. by A.H. The referrals noted that A.H. had poked S.H. with
her long fingernails, grabbed him by the hoodie, threw him in the back seat of the car
where she left him locked and unattended for 30 minutes, elbowed S.H. in the face
causing a bloody nose, and locked S.H. in a bedroom for prolonged periods of time
causing him to urinate on himself. The referrals also indicated that S.H. had been placed
on involuntary section 5150 holds in December 2020 and March 2021 after he had
expressed suicidal ideations. The sixth referral alleged general neglect to S.H. by A.H.
after the child refused to return to A.H.’s custody during the custody exchange. When
S.H. was interviewed, he appeared traumatized, exhibited behavioral outbursts, and
reported physical abuse in both homes. S.H. also disclosed being “coached” in both
homes.
On March 31, 2021, a social worker held an informal meeting with both mothers
to address the concerns of emotional abuse to the children, to promote effective
communication between the mothers, and to discuss a third party arrangement for
custody exchanges. CFS’s attempts to work with the mothers, however, was to no avail,
3 and by April 2021, the custody exchanges had not improved. Mother had violated family
law orders multiple times by refusing to exchange the children with A.H. She had also
transferred S.H.’s medical card to a county where he did not reside, thereby preventing
A.H. from getting him mental health services. The social worker believed Mother’s
conduct negatively impacted S.H.’s behaviors and emotional state. Mother and A.H. also
had prior child welfare histories. A.H.’s eldest child was removed from her care and her
parental rights as to that child were terminated in 2008.
Despite A.H.’s prior child welfare history, the social worker believed that A.H.
was a safer and more protective parent at the time and obtained a warrant to detain the
children from Mother while maintaining them with A.H. The social worker noted that
A.H. was cooperative with CFS, enrolled S.H. in programs to address his behaviors and
mental health, and attempted to change the child’s medical coverage to the county of
residence. Mother, on the other hand, repeatedly violated prior family law court orders,
made excessive calls to CFS and law enforcement with allegations of child abuse in
A.H.’s home, and undermined effective coparenting efforts.
On April 8, 2021, CFS filed petitions on behalf of the children pursuant to section
300, subdivisions (b) (failure to protect), (c) (emotional abuse), and (j) (abuse of a
sibling). The petitions were later amended on June 14, 2021, to add domestic violence
allegations against both mothers.
The children were formally detained from Mother at the April 9, 2021 detention
hearing, and maintained with A.H. on the condition that no corporal punishment be used
4 on the children. Mother was provided with weekly supervised visits, and both mothers
were advised against making disparaging remarks to the children.
CFS recommended that the petitions be sustained, the children be maintained with
A.H. under a family maintenance plan, and that Mother be provided with reunification
services. A.H. denied physically or emotionally abusing the children. A.H. believed the
allegations stemmed from Mother’s false reports to CFS and law enforcement in order to
gain primary custody of the children. A.H. also believed that Mother suffered from an
undiagnosed mental health disorder which impaired her ability to provide adequate care
and protection to the children. A.H. noted that she had observed Mother’s extreme mood
swings and anger. A.H. also reported several incidents of domestic violence during her
domestic partnership with Mother, including a 2008 incident in which Mother hit and 4 choked A.H., resulting in Mother’s arrest. A.H. recalled another incident in November
2020 in which Mother hit her in the face while she (A.H.) was holding R.H. S.H.
intervened during this incident by pulling Mother away. A.H. believed the children
suffered serious emotional damage due to the custody battle between her and Mother.
Mother denied any untreated mental health issues or difficulties regulating her
emotions. She also denied she was in a registered domestic partnership with A.H. or that
4 Mother’s criminal history indicated that she had domestic violence charges in 2006 for infliction of corporal injury to a spouse or cohabitant and a 2008 charge for battery on a spouse.
5 5 A.H. was named as a parent on the children’s birth certificates. She further denied that
the children suffered emotional abuse as a result of the custody dispute between her and
A.H. Mother claimed that A.H. used excessive physical discipline on the children and
was the cause of S.H.’s emotional issues. Mother acknowledged she had previously been
arrested for domestic violence.
On April 29, 2021, the children’s attorney requested the children be removed from
A.H.’s care based on S.H.’s disclosures of physical abuse in the home. The court granted
the request, detained the children from A.H.’s care, placed them in a foster home, and
offered the mothers pre-disposition services.
By June 2021, S.H. continued to exhibit emotional issues and was placed on a
psychiatric hold for stabilization following his visit with A.H. on June 5. During the
visit, S.H. refused to participate in the visit with A.H. and was asked to sit separately so
that A.H. could visit R.H. When S.H. overheard A.H. stating that she needed the iPad
returned from S.H., S.H. had an emotional breakdown. He began to hit his head on the
wall, throw toys, mix playdoh containers, and swing a small plastic golf club. Despite
efforts to de-escalate the child, S.H. continued to slam himself against the wall and fall to
the ground. After CFS transported the child to a hospital for an evaluation of the physical
injuries he had sustained from slamming into the wall, S.H. was placed on a psychiatric
hold and remained hospitalized until June 16, 2021. After A.H. recovered the iPad, it
5 Both A.H. and Mother were named as the children’s parents on the birth certificates.
6 was discovered that S.H. was having unauthorized and unsupervised contact with Mother.
A.H. showed CFS text messages between S.H. and Mother, in which Mother tells S.H. to
delete the text messages. The child also used the iPad to watch pornography and
communicate with an unidentified individual about his wish to commit suicide.
CFS was also concerned about Mother’s mental health as she was unable to
regulate her emotions and behaviors. In addition, she continued to deny responsibility for
her actions and did not believe her behavior affected the children. In regard to the pre-
disposition services, Mother had begun individual counseling. However, her therapist
reported that Mother was not taking any responsibility for the case, required extensive
services, and requested additional sessions in advance. CFS was concerned that S.H.’s
disclosures were influenced by “at least one parent.” CFS noted that while S.H.
maintained A.H. physically abused him, he also had a pattern of disclosing abuse while
changing some details and recanting the allegations. In any event, CFS believed S.H.’s
emotional and mental state required protection and recommended reunification services
for A.H. and Mother. CFS noted that Mother would benefit from a psychological
evaluation in order to identify untreated mental health issues and to determine the
appropriate treatment.
On June 22, 2021, CFS applied for psychotropic medication on S.H.’s behalf for
“acute stabilization.” Clinical observations described S.H. as “impulsive, aggressive
towards self and other[s] including banging head into walls, punching other[s] and
thr[owing] objects.” Mother disagreed with the administration of medication explaining
7 that “[S.H.]’s behavior has changed because of [A.H.] . . . abusing him over and over in
different ways and he’s having a hard time being around her.”
On August 3, 2021, the mothers participated in mediation. A.H. reached an
agreement, but Mother continued to disagree with the allegations and disposition.
By August 18, 2021, Mother continued to engage in pre-disposition services and
had completed individual counseling, parenting classes, and a domestic violence
program. However, Mother’s domestic violence service provider indicated that Mother’s
progress was “[g]uarded” as she required additional sessions to “complete the book, . . . a
safety plan and a[n] exit letter.” CFS was concerned that Mother had not benefitted from
her services as she continued to fail to take responsibility for her role in the acts of
domestic violence and demonstrated stalking conduct by appearing excessively early at
visits in order to observe A.H. CFS thus recommended that Mother complete an
additional domestic violence courses for perpetrators. Meanwhile, S.H.’s mental health
had begun to stabilize.
The contested jurisdictional hearing was held on August 19, 2021. Mother
testified, and denied having an untreated mental health condition or an inability to
manage her emotions. She, however, was willing to undergo a psychological evaluation.
She disagreed with the details of the November 2020 domestic violence incident, but
acknowledged that she had been arrested as a result of the incident. She also denied that
she almost hit A.H. with her car during a custody exchange. Mother admitted that she
had kept S.H. from A.H. in violation of family law court orders, but explained it was
8 because S.H. had reported being abused in A.H.’s care. She also acknowledged that there
were times when she did not allow S.H. to call A.H. Mother admitted that the relentless
custody battle with A.H. had a negative impact on the children’s emotional and mental
state, but denied that she had coached the children. She believed S.H. showed no mental
health decompensation or stress in her custody and that S.H.’s mental health had
significantly improved since December 2020. Following testimony and argument from
the parties, the juvenile court found true some of the allegations in the amended petitions
as modified and dismissed some of the allegations. The court found both Mother and
A.H. to be the children’s presumed mothers and continued the matter for a contested
disposition hearing.
On September 29, 2021, another application to continue S.H.’s psychotropic
medication was filed. Although the child’s mental health improved while he was in the
group home, there was at least one incident when the child became aggressive with the
roommate. He was also irritable at times, continued to fidget, and had difficulty
following instructions. The prescribing psychiatrist believed that stopping medication
would “mean decompensation and jeopardize placement.” The court granted the
application.
By October 13, 2021, Mother continued to participate in services, including
parenting, individual counseling, and domestic violence. Mother also completed a
psychological evaluation with Dr. Brodie. Dr. Brodie diagnosed Mother with “Partner
Relational problem,” and concluded that Mother would need to focus on “effective
9 coping with the relational stress, and managing her emotions and behaviors that may [be]
triggered if she continues to co-parent with [A.H.].” Dr. Brodie noted that Mother would
benefit from “Dialectical Behavior Therapy (emotion regulation and distress tolerance).”
Dr. Brodie also explained that Mother demonstrated “a passive style of communication,”
which made her “more prone to aggressive reactions in her romantic relationships,”
served “as a barrier to her setting limits with her son in order to comply with court
orders,” and resulted in “an avoidant response pattern and failure to verbalize
responsibility for her actions.” Dr. Brodie recommended “individual therapy to build
assertive communication” in conjunction with “treatment focused on assertive
communication and interpersonal effectiveness skills” to address Mother’s difficulties
with self-reflection and acknowledgement of responsibility. Dr. Brodie noted no specific
mental health issues that would prevent Mother from benefitting with services. However,
Dr. Brodie stated that continued domestic violence between Mother and A.H. would
present a risk to the children’s safety. Dr. Brodie thus recommended specific risks and
consequences of domestic violence and ongoing domestic dispute be identified for
Mother in writing. Dr. Brodie further noted that Mother would also benefit from
additional coaching and parental support groups.
The contested dispositional hearing was held on October 29, 2021. At that time,
Mother’s counsel argued there was insufficient evidence to remove the children from her
care and requested the court place the children back in her care under a family
maintenance plan. The juvenile court denied the request, noting that although Mother
10 had received a positive psychological evaluation and there was no impediment for her
ability to benefit from services, “[the court] [had] no information regarding [Mother] that 6 she’s accepting any responsibility for the true findings.” The court noted that therapy
for Mother was still left on her case plan and “possible PCIT [Parent Child Interaction
Therapy].” The court declared the children dependents of the court, removed them from
parental custody, and provided the mothers with reunification services and supervised
visits. Mother timely appealed.
III.
DISCUSSION
Mother contends the juvenile court erred by removing the children from her
custody because the court misapplied and shifted the burden of proof and there was 7 insufficient evidence to support the order. She argues that because she had
acknowledged the protective issues in this case and immediately participated and
completed most of her pre-disposition services, removing the children from her custody
was not necessary to protect the children’s physical and emotional well-being. Mother
6 The court specifically stated, “I’ll note that as to family maintenance, the Court does not have information before it that the true findings have been addressed. ¶ I’m happy to see that there is a positive psychological evaluation. For the court’s purpose what that tells me is that there’s no cognitive or mental health reason as to why Mom can’t benefit from services but to date I have no information regarding [Mother] that she’s accepted any responsibility for the true findings.” 7 Mother does not challenge the juvenile court’s jurisdictional findings.
11 also asserts that there were reasonable means to protect the children without removing
them from her care.
“After the juvenile court finds a child to be within its jurisdiction, the court must
conduct a dispositional hearing. [Citation.] At the dispositional hearing, the court must
decide where the child will live while under the court’s supervision.” (In re N.M. (2011)
197 Cal.App.4th 159, 169.)
“A dependent child shall not be taken from the physical custody of his or her
parents . . . with whom the child resides at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence . . . . [¶] (1) [That] [t]here is or would
be a substantial danger to the physical health, safety, protection, or physical or emotional
well-being of the minor if the minor were returned home, and there are no reasonable
means by which the minor’s physical health can be protected without removing the minor
from the minor’s parent’s . . . custody.” (§ 361, subd. (c)(1).) “Clear and convincing
evidence requires a high probability, such that the evidence is so clear as to leave no
substantial doubt.” (In re Isayah C. (2004) 118 Cal.App.4th 684, 695.) “The juvenile
court has broad discretion to determine what would best serve and protect the child’s
interest and to fashion a dispositional order in accordance with this discretion.” (In re
Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)
“Because we so abhor the involuntary separation of parent and child, the state may
disturb an existing parent-child relationship only for strong reasons and subject to careful
procedures.” (In re Kieshia E. (1993) 6 Cal.4th 68, 76.) California law therefore
12 “requires that there be no lesser alternative before a child may be removed from the home
of his or her parent.” (In re Jasmine G. (2000) 82 Cal.App.4th 282, 284; § 361,
subd. (c)(1).) But, “‘“[t]he parent need not be dangerous and the minor need not have
been actually harmed before removal is appropriate. The focus of the statute is on
averting harm to the child.” [Citation.]’” (In re John M. (2012) 212 Cal.App.4th 1117,
1126.) At the dispositional stage, the court may consider a parent’s past conduct, present
circumstances, and response to the conditions giving rise to the dependency proceedings.
(In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
We review a juvenile court’s dispositional order removing a child from parental
custody for substantial evidence, “‘bearing in mind the heightened burden of proof.’” (In
re Hailey T. (2012) 212 Cal.App.4th 139, 146.) “Substantial evidence is evidence that is
reasonable in nature, credible, and of solid value. We do not reweigh the evidence,
evaluate the credibility of witnesses or resolve evidentiary conflicts. We draw all
legitimate and reasonable inferences in support of the judgment. The appellant has the
burden to demonstrate there is no evidence of a sufficiently substantial nature to support
the findings or orders. [Citation.]” (In re D.B. (2018) 26 Cal.App.5th 320, 328-329.)
A. Misapplication of the Burden of Proof
Relying on portions of the juvenile court’s comments, namely that it had “‘no
information . . . that she’s accepted any responsibility for the true findings,’” Mother
initially asserts the court’s ruling shows “a misapplication of the burden of proof.” We
disagree. The court’s statements as to failing to accept responsibility and failing to
13 address the jurisdictional true findings do not support Mother’s contention that the court
shifted the burden of proof to the parent or that it misapplied the burden of proof. Rather,
when viewed in its context and in its entirety, the court was merely explaining, based on
Dr. Brodie’s conclusions, why the children should be removed from Mother’s custody,
namely because Mother still had not addressed all of the issues leading to the dependency
case. “A removal order is proper if it is based on proof of (1) parental inability to provide
proper care for the minor and (2) potential detriment to the minor if he or she remains
with the parent.” (In re T.W. (2013) 214 Cal.App.4th 1154, 1163 [focus of the statute is
on averting harm to the child].
Mother’s argument presumes the juvenile court applied the wrong standard. But
as a reviewing court, we are required to presume the opposite. (See Ross v. Superior
Court (1977) 19 Cal.3d 899, 913 [“‘in the absence of any contrary evidence, we are
entitled to presume that the trial court . . . properly followed established law’”].) Where
the legal standard to be applied is clear, we presume the juvenile court applied the proper
standard. (In re Fred J. (1979) 89 Cal.App.3d 168, 175.) Moreover, it appears this
preliminary argument by Mother is essentially an effort to establish that the removal
order is not supported by sufficient evidence, which we address below.
B. Substantial Evidence to Support Removal Order
Substantial evidence in this case shows that removing the children from Mother’s
custody was necessary to protect the children’s physical, developmental, and emotional
well-being, and there were no other reasonable means by which the children’s well-being
14 could be protected without removing them from Mother’s custody. (§ 361, subd. (c)(1).)
The record reveals that Mother suffered from relationship issues with A.H. that impacted
her ability to provide appropriate care and support for the children and that her animosity
toward A.H. was causing S.H. emotional distress. Despite having completed most of her
pre-disposition services, Mother continued to minimize her role in this case, failed to take
responsibility for her actions, and blamed A.H. for S.H.’s mental health issues. She
dismissed the domestic violence issues between her and A.H. and had a limited
understanding of the impact domestic violence had on the children’s well-being.
Mother’s actions and statements showed that she had limited insight into the cycles of
violence or interpersonal conflict resolution. In fact, despite having received over six
months of services, the issues leading to the children’s initial detention (domestic
violence and emotional abuse to the children) had not been resolved. As a result, Dr.
Brodie recommended that specific risks and consequences of domestic violence and
ongoing domestic disputes be identified for Mother in writing. “A parent’s denial of
domestic violence increases the risk of it recurring.” (In re V.L. (2020) 54 Cal.App.5th
147, 156; In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“One cannot correct a
problem one fails to acknowledge”].)
Mother asserts that by the contested dispositional hearing, she had been separated
from A.H. “for nearly a full year” and had no plans to reconcile. However, both mothers
were still going through the dissolution proceedings in family law court and would
continue to coparent and share custody of the children in the future. Without a clear
15 understanding of the issue and how it impacts the children, physical separation would not
preclude further incidents of domestic violence or the children’s exposure to emotional
trauma as a result of the her partner relationship problems with A.H.
Moreover, Mother’s inability to regulate conflict and emotions led to the children
suffering from emotional and behavioral issues, especially S.H. S.H. had exhibited, and
continued to exhibit, severe behavioral and emotional problems, such as throwing
objects, grabbing knives, hitting walls, and threatening to commit suicide. At least one of
S.H.’s mental health hospitalizations occurred as a result of Mother’s refusal to allow
S.H. telephone contact with A.H. during her custodial time. Nonetheless, Mother
continued to blame A.H. for S.H.’s emotional problems. The record is clear that Mother
had not accepted any responsibility for her role in the reasons for CFS’s involvement,
including decompensation of S.H.’s mental health. Mother’s therapist thus requested
extensive services for Mother with additional sessions of individual counseling. Dr.
Brodie also opined that Mother needed to focus on “effective coping with the relational
stress, and managing her emotions and behaviors that may [be] triggered if she continues
to co-parent with [A.H.].” Due to Mother experiencing difficulties with self-reflection
and acknowledgement of responsibility, Dr. Brodie thus recommended further therapy for
Mother.
Despite these concerns and substantial evidence in the record to the contrary, by
the time of the October 2021 dispositional hearing, Mother continued to minimize any
concerns regarding her ability to safely care for the children and provide for their well-
16 being. She failed to take any responsibility in her actions giving rise to the dependency
proceedings. Without acknowledgement of her relationship issues and ability to regulate
conflict and emotions, there was or would be a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the children if they were
returned to Mother’s care.
We observe that R.H. was only two years old when he came to the attention of
CFS. S.H. was 10 years old but suffered from mental and behavioral issues due to the
contentious relationship between Mother and A.H. At these ages and mental and
behavioral concerns, the children remained completely reliant on a caregiver for their
health, safety, and protection. Accordingly, that caregiver would need to be
independently familiar with identifying the needs of a toddler and a child with special
needs and would need to protect the toddler and child. Mother had, to date, not met those
requirements as she had not taken responsibility for the reasons why her children were
removed from her care and continued to minimize her actions and role leading to the
children’s detention. This is particularly concerning and a high-risk case, given the
tender age of R.H. and the special needs of S.H.
Furthermore, contrary to Mother’s claims, there were no reasonable means
available to protect the children short of removal. She asserts that given her “cooperation
and participation in services in the months leading up to disposition and the availability
of additional safety measures (such as unannounced social worker visits) afforded by
juvenile court jurisdiction, reasonable means short of removal were available in this
17 case.” We disagree. CFS did attempt to develop a safety plan with Mother and A.H. for
approximately five months prior to the children’s detention. CFS first observed the
family in December 2020, and at that time, provided the mothers with referrals for
counseling to address their relationship concerns and inability to coparent. And, on
March 31, 2021, after six referrals alleging emotional and physical abuse, CFS held a
meeting with the mothers to address concerns related to the children’s emotional abuse
and ways to promote effective communication between the mothers.
The social worker had explained to both mothers that S.H.’s autism spectrum
required more balanced parenting. Nonetheless, the mothers continued to have
relationship issues that often involved law enforcement and CFS interventions, causing
S.H. to suffer further mental and behavioral issues. Even by April 2021, the custody
exchanges between the mothers had not improved. Mother refused to return the children
to A.H. in accordance with the court-approved custody order and A.H. accused Mother of
“screaming and yelling” during exchanges. Despite the mothers receiving voluntary
services while the children were in their custody, the children’s safety was still at risk.
Further, Mother demonstrated that she was unwilling or unable to comply with court
orders without close supervision. She repeatedly violated family law court custody
exchange orders, and during the dependency proceedings, violated court orders by
engaging in unauthorized and unsupervised contact with S.H.
Moreover, despite receiving six months of services, Mother continued to minimize
her actions, failed to take responsibility for some of her actions, and blamed A.H. for the
18 dependency proceeding. She also failed to show that she could regulate conflict and
emotions in order to protect the children. Given these concerns, the juvenile court
reasonably concluded that the only way to ensure the children’s safety was to remove
them from Mother’s custody. There were no reasonable means to protect the children
short of removal from Mother.
Mother has not met her burden on appeal to demonstrate that there is no
substantial evidence to support the juvenile court’s dispositional order removing the
children from parental custody.
IV.
DISPOSITION
The juvenile court’s dispositional order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J.
We concur:
SLOUGH J.
FIELDS J.