San Diego Cnty. Health & Human Servs. Agency v. E.S. (In re C.M.)

222 Cal. Rptr. 3d 892, 15 Cal. App. 5th 376
CourtCalifornia Court of Appeal, 5th District
DecidedSeptember 15, 2017
DocketD072056
StatusPublished
Cited by26 cases

This text of 222 Cal. Rptr. 3d 892 (San Diego Cnty. Health & Human Servs. Agency v. E.S. (In re C.M.)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
San Diego Cnty. Health & Human Servs. Agency v. E.S. (In re C.M.), 222 Cal. Rptr. 3d 892, 15 Cal. App. 5th 376 (Cal. Ct. App. 2017).

Opinion

HUFFMAN, J.

*380At a special hearing, the juvenile court issued a permanent restraining order prohibiting the child's stepfather from having any contact with the child. ( Welf. & Inst. Code, § 213.5.)1 The child's mother, E.S., appeals from an order of the juvenile court issued at the same hearing, directing the San Diego County Health and Human Services Agency (Agency) to immediately remove her child from her care if there is "any evidence that the minor has been exposed to [his stepfather] or if mother violates the restraining order." We reverse the order.

*895FACTUAL AND PROCEDURAL BACKGROUND

C.M., who is now eight years old, is the son of E.S. and C.M., Sr.2 In January 2016, E.S. married K.K. E.S. knew that K.K. had a history of domestic violence in another relationship and had completed a domestic violence treatment program. During the first year of their marriage, there were four incidents of domestic violence between E.S. and K.K. During one of those incidents, K.K. hit E.S. in the face, giving her two black eyes. C.M. was present during another incident.

On January 7, 2017, K.K. pushed E.S. and hit her in the face, sprayed bleach on C.M., poured bleach on a pile of their clothes, and threw a bottle of bleach at E.S. E.S. locked herself and C.M. in the bathroom, and telephoned the police. Police officers arrested K.K. Officers reported E.S. had minor bruising on her cheek. There were visible signs of a struggle in the home. Paintings had fallen off the wall. There was a clear liquid that smelled like bleach outside the bathroom where E.S. and C.M. had been hiding. C.M. said his stepfather had punched him in the stomach on several occasions, and once on his back. E.S. was not present when K.K. hit him.

On January 17, 2017, the Agency filed a two-count petition alleging seven-year-old C.M. had suffered, or was at substantial risk of suffering, serious physical harm or illness as a result of physical abuse by his stepfather K.K., domestic violence between E.S. and K.K., and E.S.'s failure or inability to adequately protect C.M. (§ 300, subd. (b).)

*381In an interview with a social worker, when asked about the white spots that were all over his pants and shirt, C.M. said K.K. sprayed bleach on him. C.M. mimed the use of a spray bottle. He said the bleach "touched my eyes and it started to burn." K.K. also poured bleach on a pile of C.M.'s and E.S.'s clothes. C.M. did not see his stepfather hit his mother but heard him yelling at her. C.M. said he felt safe in the home "but only with my mom." His stepfather would "get in my mom's face and yell at her and me." When C.M. heard fighting sounds that scared him, he would stay in his room. He was scared when he saw bruises on his mother's arms.

E.S. said K.K. complained she did not pay attention to the family and intentionally broke her fan on the evening of January 6. When K.K. became angry, he destroyed her property. He previously had destroyed five other fans and her phone. K.K. grabbed her by the arms and held her down on the bed. C.M. was in his bedroom during this altercation. The next day, K.K. took her food stamp card to buy food for a party with his friends. E.S. started throwing the party food in the trash. K.K. hit her on the side of her face. He then obtained a knife and tried to cut her shoe with it. K.K. poured bleach on a pile of her clothes. Her eyes were burning. E.S. did not know whether K.K. sprayed bleach directly at C.M. She felt badly about the incident because it scared her son.

After his arrest, K.K. returned home. E.S. was reluctant to leave. She was a stay-at-home wife and mother, and just had learned she was two months pregnant. The social worker explained to E.S. that she had failed to protect C.M. by remaining in an abusive relationship. After discussing the issue for six hours, E.S. agreed to leave the home. She and C.M. moved in with relatives. E.S. said she did not want *896her son to feel scared or be at any risk of harm, and she planned to divorce K.K. She changed C.M.'s school because his old school was close to K.K.'s home and she did not want her son to feel scared.

At the detention hearing, the juvenile court detained C.M. with E.S. on condition she reside with a family member or in a domestic violence shelter, enroll in a domestic violence prevention program, obtain counseling for C.M., not use corporal punishment to discipline C.M., and to comply with all court orders. The court issued a temporary restraining order protecting C.M. from K.K. The minute order states: "If mother violates the conditions of detention, the minor is to be removed from her care."

The jurisdictional and dispositional hearing was held on February 8. The social worker said C.M. was happy in his mother's care and liked being with his family. The maternal relatives provided a strong safety network. E.S. was abiding by the temporary restraining order and had not permitted K.K. to have any contact with C.M.

*382The court found that C.M.'s placement with his mother would not be detrimental to him provided she complied with the conditions set by the court. These conditions included compliance with the case plan, not allowing the stepfather to have any contact with C.M., not violating the restraining order, meeting C.M.'s educational, medical, dental and service needs, and making C.M. available to minor's counsel or investigator. The court ordered the Agency to immediately set a special hearing if E.S. disengaged in services. The court set a special hearing on issuing a permanent restraining order.3

On March 3, at the hearing on the restraining order, E.S. acknowledged she and K.K. had engaged in physical altercations. She denied he ever hit C.M. in the stomach. She acknowledged K.K. had destroyed her property, including six fans, a television and a cell phone. He tried to cut her shoe with a "skinny kitchen knife" but did not damage the shoe. During the January 7 incident, she and C.M. had to sit in some of the bleach and their eyes were burning. C.M.'s clothes were spotted with bleach because E.S. touched him when they moved to the bathroom.

E.S. testified she never sought a restraining order against K.K. because he did not pose a threat to her. E.S. believed C.M. was safe in K.K.'s presence. She planned to stay married to K.K., but not if it meant C.M. could be removed from her care. C.M. was always excited to see K.K. They enjoyed sports, wrestling and bike riding together. They had a happy relationship.

The social worker testified when she interviewed C.M. on January 31, C.M. was afraid of his stepfather. C.M. felt safe at his relatives' houses and was happy his mom was there. In describing the January 7 incident, C.M. said he was in his room and heard yelling and screaming and things being thrown around. His mother called him and they went into the bathroom. K.K. sprayed them with bleach. The social worker expressed doubts about *897E.S.'s ability to protect C.M. from his stepfather. She recommend the court issue a permanent restraining order prohibiting K.K. from having any contact with C.M.

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Cite This Page — Counsel Stack

Bluebook (online)
222 Cal. Rptr. 3d 892, 15 Cal. App. 5th 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-diego-cnty-health-human-servs-agency-v-es-in-re-cm-calctapp5d-2017.