Opinion
B297144
03-23-2020
In re K.T. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOSE T., Defendant and Appellant.
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP00960A-B) APPEAL from an order of the Superior Court of Los Angeles County, Philip L. Soto, Judge. Affirmed. Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
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Jose T. (father) appeals from an order removing his children, K.T. and F.T., from his custody under Welfare and Institutions Code section 361, subdivision (c)(1). After sustaining the jurisdictional allegations in the petition filed by the Los Angeles County Department of Children and Family Services (Department), the court found clear and convincing evidence that it would be detrimental to the children's safety and protection for them to be returned to parents' custody, and that the Department made reasonable efforts to prevent removal. Father does not challenge the jurisdictional findings. His sole contention on appeal is that the removal order is not supported by substantial evidence. We affirm the removal order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying dependency proceedings involve two children: K.T. (born 2010) and F.T. (born 2013). Beginning in September 2013, the family was the subject of seven referrals prior to the commencement of the current dependency proceedings. These referrals pertained to mother's erratic behavior, signs of physical abuse against the children, and concerns about the children's hygiene and clothing. The family entered a voluntary family maintenance contract on September 7, 2017, which continued through June 20, 2018.
In January 2019, after the Department received another referral regarding the children, a social worker met F.T. and K.T. at school. F.T. reported that the family had been sleeping in a truck and that mother was currently in jail due to an incident at a fast food restaurant. Both children stated that they did not have enough food to eat. Also, both children wore dirty, ill-fitting clothing and appeared as though they had not bathed in days. F.T. had visible tooth decay on his front teeth and K.T.'s head was shaved. K.T. explained that mother had shaved her head because she constantly had lice, causing her to become anemic.
K.T. explained that the family was banned from a local community shelter because mother got into too many arguments with other people there. When asked about the family's involvement with LA Housing services, mother explained that the family was previously allowed to stay in a hotel through August 2018, at which point their services were terminated. Since then, mother had tried contacting LA Housing, but "it was so hard to get a hold [of] anyone and no one ever contacted her."
Both children reported instances of physical violence directed at them by the parents, as well as physical violence between mother and father. Father would hit mother with a stick, she would retaliate by grabbing a belt, and they would hit each other. Mother would hit F.T. with a shoe or grab his hand and hit his face, and father would hit him with a belt. Mother and father would hit K.T. with a shoe as well. Father would hit the minors with a stick, belt, and shoe. Father had also hit K.T. with a wrench and a cord. Staff members at the children's school had also witnessed father hitting mother with an umbrella in front of the school. The school staff attempted to refer the family to resources, but father rebuffed their assistance.
Both parents denied ever having hit each other or their children. Father supposed that the Department's recent involvement with his family was due to the abrupt cancellation of the housing assistance they had been receiving in August 2018. He reported he washed the children's clothes every three days, but mother was primarily responsible for bathing them. He commented that if the Department was going to take his children, he would rather take them to El Salvador, where he had family. Finally, he inquired whether the social worker could assist the family in locating shelter.
The Department's detention report indicated that on February 5, 2019, a social worker contacted the LA Homeless Authority Resources, and was informed that the family had two case workers, as they were involved in two separate programs: LA Family Housing and a shelter program. The representative from the LA Homeless Authority Resources advised that the social worker would be contacted by caseworkers to determine why the family had not received services. The report concluded that "[r]easonable efforts were made to prevent or eliminate the need for the child(ren)'s removal from the home." It stated that certain "Pre-placement Preventative Services were provided but were not effective in preventing or eliminating the need for removal of the child from the home." The services provided were described as: "Counseling, Case Management, Parent Training, Transportation, Other Services."
On February 13, 2019, the Department filed a petition pursuant to section 300. The petition alleged the children were at risk of harm, as the parents physically abused the children, engaged in violent altercations in the children's presence, failed to provide F.T. with timely dental care, established filthy and unsanitary living conditions, and failed to provide the children with an adequate amount of food. The petition also alleged that mother had a history of mental and emotional problems and often exhibited aggressive and volatile behavior in the children's presence.
At the detention hearing, the court detained the children from the parents and ordered monitored visitation. The minute order states, "The [Department] made reasonable efforts to prevent removal and there are no services available to prevent further detention." The court ordered the Department "to provide parents transportation and housing assistance," and that the "[r]eferrals to parents are to be on a low cost no cost basis."
As detailed in the Department's jurisdiction and disposition report, K.T. could recall five occasions in which father had hit her with a belt. In addition, she had seen father hit F.T. with a shoe and belt. K.T. also reported that the parents would fight in the children's presence. She explained that father would hit mother "everywhere with his fists," and then mother would do "the same thing." They would always throw things at each other.
F.T. observed father hit K.T. with a belt, shoes, and his hand. Father would mostly hit F.T. with a belt and once did so with a cord. Father would hit mother "all the time" with his hands, and on one occasion, used a stick. Mother had also thrown a book at father. Again, both parents denied ever hitting the children or each other. The children's babysitter observed father grab K.T. roughly, and heard father tell F.T., "'[W]ait to [sic] we get home. I'm gonna get the belt.'"
In February 2019, the Department provided the parents with referrals for counseling, a parenting program, a domestic violence program, and community resources. The Department received a progress letter showing that the parents were enrolled in a parenting program and father had attended one class.
In March 2019, a Child Family Team meeting was conducted with the parents at a Department office. The Department noted the parents were eager to reunify with the children, wanted to secure housing, and were willing to participate in services.
At the jurisdictional hearing, the juvenile court sustained the counts related to the parents' physical abuse of the children and each parent's inability to protect the children from the other parent's physical abuse, the parents' domestic violence, mother's emotional problems involving aggressive and volatile behavior, and the parents' failure to provide F.T. with timely dental care. The court dismissed the counts relating to the family's living conditions and inadequate provision of food for the children.
Proceeding to disposition, the court declared the children dependents under section 300, and found that "continuance in the home of the parent[s] is contrary to the children's welfare," and there was "no reasonable means to keep the children safe without removal from the parents and ordered into suitable placement services."
The minute order stated the court found "[i]t is reasonable and necessary to remove the child[ren] from the parents . . . because there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being . . . of the child[ren], and there are no reasonable means by which the child[ren]'s physical health can be protected, without removing the child[ren] from the home . . . ." The court further found that "it would be detrimental to the safety, protection, or physical or emotional well-being . . . of the child[ren] to be returned to or placed in the home . . . ." The court further found that the Department "made reasonable efforts to prevent removal but there are no services available to prevent further detention."
Finally, the court ordered the children suitably placed and ordered monitored visitation for the parents. The court ordered family reunification services for the parents.
On April 3, 2019, mother timely filed a notice of appeal. On April 17, 2019, father timely filed a notice of appeal.
On July 16, 2019, mother's appointed counsel filed a brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 raising no contentions of error. Mother did not file a separate brief, so only father's appeal is now before us for decision.
DISCUSSION
On appeal, father argues that the juvenile court erred in making its removal order in two respects: first, the court failed to comply with the requirement in section 361, subdivision (e), that it state facts upon which it based the order; second, there is no substantial evidence to support the removal order, because there were reasonable alternatives to removal. We affirm the juvenile court's order. Father failed to object in the juvenile court proceedings to the failure to state facts as required by section 361, subdivision (e), and the issue is forfeited on appeal. Further, the record reflects substantial evidence to support removal of the children, including evidence that the Department made reasonable efforts to avoid removal, but that no alternatives to removal would protect the children from substantial danger. The children's statements regarding physical abuse, the denials by the parents of that abuse, coupled with the Department's numerous attempts to assist the family, provide substantial evidence in support of the juvenile court's order that there was a substantial danger to the children and there were no reasonable means to protect them absent removal. Removal orders
The decision to remove a child from parental custody is only authorized when a dependency court finds, by clear and convincing evidence, 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 . . . physical custody." (§ 361, subd. (c)(1).) "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"].) "'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus . . . is on averting harm to the child. [Citation.]' [Citation.]" (In re Miguel C. (2011) 198 Cal.App.4th 965, 969.) "The court may consider a parent's past conduct as well as present circumstances." (In re N.M. (2011) 197 Cal.App.4th 159, 170.)
"[C]ourts have recognized that less drastic alternatives to removal may be available in a given case including returning a minor to parental custody under stringent conditions of supervision by the agency such as unannounced visits." (In re Hailey T. (2012) 212 Cal.App.4th 139, 148.) Therefore, before removing a minor, "[t]he court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and "shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).)
We agree with authorities holding that "[t]he clear and convincing standard was adopted to guide the trial court; it is not a standard for appellate review. [Citation.] The substantial evidence rule applies no matter what the standard of proof at trial." (In re E.B. (2010) 184 Cal.App.4th 568, 578; see also In re Alexzander C. (2017) 18 Cal.App.5th 438, 451 [substantial evidence review applies on appeal, even for issues the trial court decides on clear and convincing evidence].) Forfeiture
At the disposition hearing, the court found that there were no reasonable means by which the minors' welfare could be protected absent removal from parents' custody, but did not state the facts on which its finding was based. Father did not lodge a contemporaneous objection to the juvenile court's failure to comply with the procedures set forth in section 361, subdivision (e), but contends on appeal that the juvenile court's error requires reversal of the dispositional order. We disagree.
"[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court." (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.) "Otherwise, opposing parties and trial courts would be deprived of opportunities to correct alleged errors, and parties and appellate courts would be required to deplete costly resources 'to address purported errors which could have been rectified in the trial court had an objection been made.' [Citation.]" (In re S.C. (2006) 138 Cal.App.4th 396, 406.) "The forfeiture doctrine has been applied in dependency proceedings in a wide variety of contexts, including cases involving failures to obtain various statutorily required reports [citation]; failure to object to the adequacy of an adoption assessment [citations]; failure to request an alternative placement [citation]; and failure to require expert testimony and to make the required findings using the beyond-a-reasonable-doubt standard as mandated by ICWA [citation]." (In re G.C. (2013) 216 Cal.App.4th 1391, 1398-1391.) Given father's failure to object to the juvenile court's procedural error below, the forfeiture doctrine bars his contention of error on appeal. Substantial Evidence
Father also notes that the Department did not prepare a social study that included "[a] discussion of the reasonable efforts made to prevent or eliminate removal," as required by California Rules of Court, rule 5.690(a)(1)(b)(i). To the extent that father is contending that the Department's inadequate social study provides a basis for reversal, we reject the argument. As with the juvenile court's failure to state the factual basis for its finding under section 361, subdivision (e), father made no objection to the court making orders based on the Department's allegedly inadequate study. Rule 5.690 exists to facilitate the court's findings (In re Ashly F. (2014) 225 Cal.App.4th 803, 809 (Ashly F.)), and has limited independent impact. Where the court's alleged statutory violation of section 361, subdivision (e), has been forfeited by a failure to object, so too has a claim that the court relied on a Department report that did not comply with Rule 5.690.
Moving beyond the court's procedural error, Father argues that the removal order was not supported by substantial evidence, specifically evidence that the Department made reasonable efforts to prevent removal and that no reasonable alternatives to removal exist. In support of his contention, Father relies on Ashly F., supra, 225 Cal.App.4th 803. In Ashly F., the juvenile court ordered two minor children removed from their home, due to allegations of child abuse from their mother. (Id. at p. 805.) At the combined jurisdictional and dispositional hearing, "[t]he court found 'by clear and convincing evidence' that '[t]here are no reasonable means by which the children's physical and emotional health could be protected without removing them from the parents' physical custody.' The court further found that '[r]easonable efforts were made to prevent and eliminate the need for the children's removal.'" (Id. at p. 808.) But, on review, the Court of Appeal noted, "No discussion of reasonable efforts appears in the record in this case." (Id. at p. 809.) The Department's report "merely stated in perfunctory language that '[r]easonable efforts were made to prevent or to eliminate the need for removal of the [children] from [their] home.' No supporting evidence was offered. Likewise, the [Department] report stated in conclusory fashion that 'there are no reasonable means by which the child(ren)'s physical health can be protected without removing the child(ren) from the physical custody of the child(ren)'s parents . . . .'" (Ibid.) However, the Department "did not describe the 'reasonable means' it had considered and rejected." (Ibid.) Absent such factual record, "there is a danger the agency's declarations that there were 'no reasonable means' other than removal 'by which the [children's] physical or emotional health may be protected' and that 'reasonable efforts were made to prevent or to eliminate the need for removal' can become merely a hollow formula designed to achieve the result the agency seeks." (Id. at p. 810.)
We agree with father that, despite the lack of objection in the juvenile court to the removal, his contention that no substantial evidence supports the order can nevertheless be raised on appeal. (In re Erik P. (2002) 104 Cal.App.4th 395, 399.)
Although father here correctly draws an analogy between this case and Ashly F. with respect to the conclusory language in the court's removal order (i.e., the issue we have determined he has forfeited), the factual circumstances of this case render Ashly F. inapposite with respect to the issue of substantial evidence. In Ashly F., the Court of Appeal not only took issue with the fact that there was no evidence of reasonable efforts to avoid removal "in the record," the court also found "[a]mple evidence . . . of 'reasonable means' to protect [the children] in their home." (Ashly F., supra, 225 Cal.App.4th at p. 809-810.) Significantly, the mother in that case admitted her physical abuse of her child, expressed remorse for injuries she inflicted, and removed herself from the home and enrolled in classes prior to the disposition hearing; the father had completed parenting class. (Id. at p. 810.) Under the circumstances present there, the Court of Appeal determined the juvenile court could have considered alternatives such as in-home counseling, unannounced visits to the home by social workers, and removing mother herself from the home.
In contrast, the record before us includes substantial evidence that without removing minors from parents' custody, there would be a substantial danger to their physical health, safety, protection, or physical or emotional well-being. The children themselves described several instances of physical abuse from and between father and mother. Unlike the mother in Ashly F., however, here neither parent showed remorse; rather, both parents have repeatedly denied ever having physically abused each other or their children. Further, there is evidence that mother's erratic and hostile behavior may be occasioned by an undiagnosed mental illness, which neither parent appears to have undertaken any effort to address. At the commencement of this proceeding, mother was in jail due to an altercation at a fast food restaurant. Also, the family was banished from a community shelter because of mother's confrontational behavior. Based on this evidence, the dependency court could reasonably conclude that the parents would place the minors in substantial danger if they were to continue living with them, even if coupled with family maintenance services and close Department supervision through unannounced visits.
These kinds of reasonable alternatives had been tried by the Department, but the children were still reporting physical abuse and domestic violence. The parents had been provided with referrals to various family maintenance services, but their participation was minimal at best. The family did not have stable housing, which raised doubt as to the efficacy of unannounced visits. To this point, father faults the Department for failing to assist the family in obtaining housing, which he suggests is the root cause of the current dependency proceedings. However, the Department confirmed that two separate case workers from the LA Homeless Authority Resources were handling the family's case. Thus, it appears that efforts were underway to secure housing. Further, when the family was residing at a community shelter, mother's erratic behavior resulted in them being permanently banned from the shelter. Thus, it is far from clear that even progress in finding housing for the family would have mitigated the dangers posed by parents' conduct. Both parents were abusive, thereby negating the removal of one parent as a viable option. Father was at risk of absconding with the children to El Salvador, having previously mentioned his intention of doing so. Based on the history of repeated intervention and ongoing evidence that the children were continuing to suffer abuse and neglect, we conclude there was substantial evidence to support the removal order.
DISPOSITION
The court's dispositional order is affirmed.
MOOR, J. We concur:
RUBIN P. J.
BAKER, J.