Opinion
G063047
03-28-2024
In re A.N. et al., Persons Coming Under the Juvenile Court Law. v. G.N., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Shobita Misra, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Nos. 23DP0438, 23DP0439, Joseph Kang, Judge. Affirmed in part, reversed in part, and remanded.
Shobita Misra, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
INTRODUCTION
G.N. (Mother) is the mother of A.N. and K.N. (together, the Minors) who were taken into protective custody by Orange County Social Services Agency (SSA) in April 2023. Mother appeals from the dispositional order declaring the Minors to be dependent children pursuant to Welfare and Institutions Code section 360, subdivision (d), removing them from Mother's custody, and vesting custody with their presumed father, L.N. She contends the order removing the Minors from her custody and placing them with L.N. was not supported by substantial evidence. She also contends the juvenile court erred by failing to consider less drastic alternatives to removal.
All statutory references are to the Welfare and Institutions Code.
We conclude substantial evidence supported the juvenile court's finding that the Minors would be in substantial danger of harm if returned to Mother's custody, but the juvenile court erred by not considering alternatives to removal. We therefore reverse and remand with directions to the juvenile court to conduct another dispositional hearing to consider all reasonable alternatives to removal.
The facts presented are taken from SSA's jurisdiction/disposition report dated June 5, 2023, SSA's addendum report No. 1 dated June 14, 2023, and SSA's addendum report No. 2 dated July 12, 2023. These reports were received into evidence at the dispositional hearing.
I. Background
A.N. was born in 2007; K.N. was born in 2011. Before being detained, A.N. and K.N. lived with Mother in Irvine. Mother identified L.N., who lives in San Diego County, as the Minors' father. Mother and L.N. were never married.
On March 31, 2023, Mother went to a hospital to get a refill of her psychiatric medication. Mother underwent an evaluation at the hospital, during which she expressed a desire to drive her car off a bridge. Mother immediately was placed on a 24-hour psychiatric medical hold. The hold later was extended to 14 days.
Mother told hospital staff that she had left A.N. and K.N. home alone. Police officers were notified. A police officer went to the hospital and spoke with the charge nurse. The officer also tried to speak with Mother, but she yelled profanities at the officer. The officer also contacted maternal grandmother, R.N. (Maternal Grandmother). She agreed to leave her home immediately and stay with the Minors until Mother was released from the hospital. Another police officer was sent to the home to conduct a welfare check on the Minors. They were safe and unharmed.
At the hospital, Mother tested positive for fentanyl, methamphetamine, cocaine, and benzodiazepine. Mother later told the assigned social worker that a friend put the fentanyl in her drink but admitted using drugs a few nights before being hospitalized.
II. SSA Investigation
SSA received a referral and initiated an investigation into child neglect. An emergency response social worker interviewed Mother at the facility at which she had been admitted. Mother told the social worker she had been diagnosed with depression and anxiety for which she had been prescribed Lorazepam. Mother claimed she was a "normal person" and there was nothing wrong with her. She denied current drug use.
The social worker asked Mother for permission to speak with the Minors. Mother refused. She said another social worker had spoken with her the prior month and cleared her of any wrongdoing.
On April 4, the social worker spoke with Maternal Grandmother. Maternal Grandmother said she had concerns about Mother and the Minors. According to Maternal Grandmother, in the past Mother often made reports to the police based on her delusions that she was in danger. When the police department stopped responding to her calls, Mother had A.N. call for her. Mother eventually stopped sending the Minors to school because she believed they were also in danger.
Maternal Grandmother stated that after receiving the call from the police, she went to pick up the Minors and found there was no toilet paper or laundry detergent and very little food in the home. Maternal Grandmother said that in the past she had received calls from the Minors asking her to bring food because there was none in the home. Maternal Grandmother said the home is "a mess and is unsafe," and, in addition to dishes, Mother would leave her drugs and drug paraphernalia "just . . . laying around" and accessible to the Minors. Maternal Grandmother told the social worker that Mother always had issues, but they had started getting worse in October 2022.
K.N. was interviewed at her school on April 11, 2023. She was clean and well groomed. She stated Mother usually takes care of her, there is enough food and clean clothing, and she is taken to doctor and dentist appointments as necessary. K.N. said Mother talked to herself "a little bit." K.N. denied being fearful of anyone and felt safe at home. School staff, however, expressed concern that Mother was neglecting the Minors. On one occasion, Mother had dropped K.N. off at school on a day when school was not in session; K.N. sat at the school and cried for hours. There was a time when K.N. was late for school almost every day and often complained of hunger. Maternal Grandmother has also called the school to express her concerns about the Minors.
On April 11, 2023, Mother was released, against medical advice, from a psychiatric medical hold.
The social worker interviewed A.N. at school on April 12, 2023. A.N. said she is left home alone "little bits of time" and Mother takes care of her "most of the time." A.N. stated that "once in a while" she would be hungry, there would be no food in the house, and she would have no clean clothes to wear. A.N. visits the doctor and dentist when needed. A.N. also stated that adults at her home drank alcohol at parties and celebrations but did not act differently when they drank. According to A.N., Mother feels sad "once in a while" and when she feels sad "she just stays in her room most of the day."
The social worker interviewed the vice principal and the school psychologist of A.N.'s school. They told the social worker A.N. has been diagnosed with autism spectrum disorder. Although A.N. "presents well" and is well behaved, she is not at the same academic level as her peers. As to Mother, the vice principal and the school psychologist said that while she had behaved appropriately during a meeting the previous year, this year she had behaved "erratic[ally]." Mother has gone to the school to pick up A.N. on days that A.N. was not at school and has spoken to school staff about lawsuits.
On April 12, 2023, after Mother's release from the psychiatric hold, the social worker visited the home and spoke with Mother. The home was slightly disheveled, but no safety hazards were seen and there appeared to be enough food. Although Mother denied having mental health issues, Mother stated, "I know I have something. I am a sensitive person and I am stressed because I have to do this all on my own." When asked about hospital instructions for follow-up care, Mother claimed the psychiatrist was "fully booked." When asked about prior psychiatrists, Mother stated, "I just went to the hospital to get a refill on my medication and the doctor freaked out on me. Yeah, I thought about harming myself like 10 years ago." Mother said she had been prescribed Zyprexa and Citalopram but did not want to continue taking those medications because they made her dizzy.
When asked about the positive test for fentanyl, Mother claimed a friend had put it in her drink. Confronted with the positive test for cocaine, Mother acknowledged she had taken cocaine while out with friends a few nights before she went to the hospital. She claimed the last time she had used drugs was about three weeks earlier and she does not use drugs regularly. When the social worker expressed concern over Mother's mental health and substance use, Mother stated she was not "crazy," had made a mistake, and would not use drugs again.
On April 13, 2023, the social worker spoke with Officer Jaclyn Aguirre of the Irvine Police Department Mental Health Unit. Aguirre believed that Mother was going through a "mental health crisis." Mother had lodged complaints with the police department about her prior employer and about a woman who, Mother claimed, had rented her car and damaged it.
A police report confirmed that law enforcement had been dispatched to the home on February 22, 2023, because the Minors had not been in school. The front windows of the home were covered with paper and tarps. Mother told police officers that people were trying to break into her home and her calls to the police department had produced no results. She said the Minors had not been in school because she was afraid for their safety. A.N. said that Mother had been acting paranoid and was afraid that snipers could shoot into the home. According to the police report, the home, Mother, and the Minors all appeared to be in "good condition" and the Minors did not appear to be at risk. Although the police report notes that Mother "appeared to be very manic and had difficulty maintaining a single train of thought," it did not recommend mental health detention. Aguirre believed Mother appeared to be delusional and paranoid.
The social worker also interviewed L.N. He lived with his girlfriend and her four children. He and Mother had broken up in 2013 and he had lost contact with her until 2019. L.N. denied currently using drugs but acknowledged he had used drugs in the past and had been arrested on drug charges. L.N. stated he has to randomly drug test for work. He denied having any mental health or domestic violence issues. L.N. did not have a stronger presence with the Minors because it has been difficult to have a relationship with Mother. She blocks his telephone calls and frequently changes her telephone number. He claimed that in the past, when he had visited Mother, she would offer him alcohol and pills. L.N. said that Mother had always been "somewhat eccentric" but seemed to be getting worse and more unstable.
Mother had a criminal history that included arrests and/or convictions for driving under the influence, obstructing a public officer, possession of a controlled substance, reckless driving, disorderly conduct while intoxicated, and driving on a suspended license. L.N. had a criminal history that included convictions for carrying a concealed weapon, possession of a controlled substance, transportation for sale of a controlled substance, and driving under the influence. Neither Mother nor L.N. had a record of domestic violence or outstanding warrants.
III. Protective Custody Warrant
On April 18, 2023, the social worker received a telephone call from Mother. The social worker asked Mother if she had made an appointment with her psychiatrist. Mother, speaking rapidly and erratically, said she had had a very busy day and blamed the Irvine Police Department for placing her on a psychiatric hold. Mother again claimed she was not suicidal and had told the psychiatrist only about a suicidal thought in past. Mother was not taking her psychiatric medication yet felt "fine" and "happy."
The telephone conversation led the social worker to be concerned about Mother's mental health and the Minors' safety. The social worker decided to conduct a home visit. When the social worker arrived at the home, Mother, wearing a black evening dress and glittery gold high heels, was vacuuming the living room. The social worker spoke with the Minors separately. Both appeared to be happy and in good health and said there was plenty of food in the house.
SSA obtained a protective custody warrant to remove the Minors from Mother's care and place them with L.N. When social workers and law enforcement went to the home to serve the protective custody warrant, Mother refused to surrender the Minors and told them to lock themselves in their bedrooms and not come out. Mother called Maternal Grandmother and asked her to come to the home. Mother screamed that she would hurt herself if the Minors were taken from her, that L.N. was a murderer, a criminal, a gang member, and did not have a job or money, and that the social workers would never find a parent who could provide for the children as Mother did. Mother went upstairs, locked herself in a room, and told the police to leave.
A social worker spoke with the Minors. While A.N. was cooperative, K.N. refused to pack a bag and leave. Forcible removal was averted by leaving the Minors in Mother's care with Maternal Grandmother staying in the home until the detention hearing. Mother and Maternal Grandmother signed a safety plan.
IV. Juvenile Dependency Petition and Detention Hearing
On April 21, 2023, SSA filed a juvenile dependency petition under section 300, subdivision (b)(1) as to both Mother and L.N., alleging failure to protect and inability to provide regular care. As amended by interlineation, the dependency petition alleged Mother may have unresolved mental health issues, may have an unresolved problem with substance abuse, and has a criminal record.
At the detention hearing on April 24, 2023, Mother and L.N., through respective counsel, denied the allegations of the dependency petition. The juvenile court found L.N. to be the Minors' presumed father. The court found that continuing to live in Mother's home would be contrary to the Minors' welfare and, following SSA's recommendation, ordered the Minors be detained only from Mother. The Minors were placed with L.N. with protective orders requiring L.N. to arrange for the Minors to stay in their current schools until the end of the academic year. Reunification services were ordered for Mother and monitored visitation was authorized.
V. Mother's Conduct from the Detention Hearing to the Jurisdictional Hearing
In the weeks following the detention hearing, Mother continued to deny having mental health issues. While she acknowledged suffering depression due to the
Minors' removal from her care, she denied having a "mental health diagnosis" or taking medication other than Seroquel, which she took for sleep. Mother told the social worker: "I don't feel like I have mental health problems. I feel like I am pretty normal. I'm not crazy, I don't hear voices."
In June 2023, Mother missed three scheduled appointments with Open Access Mental Health Services. She stopped taking Seroquel because, she claimed, she no longer needed it and it made her feel "dazed." As of June 26, 2023, she still maintained she had not received a mental health diagnosis. Although Mother was seeing a therapist, she told the social worker in late June that she had no mental health issues and did not need therapy. At that time, Mother's therapist told the social worker that Mother sounded "good" and "strong."
Mother resisted following through on referrals for mental health care, substance abuse treatment, and drug testing. In early May 2023, she told a social worker she wanted all of her referrals canceled.
Mother eventually agreed to random drug testing. As of July 5, 2023, she had missed 12 tests and had three negative tests. Her June 2, 2023 test was positive for cocaine. Mother told the social worker she felt stressed because, upon calling in for drug testing, the automated service frequently indicated, particularly in May, that "no testing" was scheduled. Mother also told the social worker she was unable to test for drugs on the weekends because the testing site closed at 12:00 p.m., Mother worked as an exotic dancer until 4:00 a.m., and she needed to sleep afterwards.
Mother denied current drug use and maintained the position that she did not have a substance abuse problem. When, in late June 2023, the social worker reminded Mother of the recommendation that she participate in a substance abuse treatment program, Mother replied that she was not an addict and did not need or want to participate in a treatment program. She claimed her positive test for cocaine was due to her work environment, where she "never knows if someone puts something in [her] drink." Mother also claimed that participation in a substance abuse treatment program would be an admission that she was an addict, which she no longer was.
Mother had regular and consistent in-person and telephone visits with the Minors. The Minors also had some overnight visits with Maternal Grandmother. In early June 2023, the Minors told the social worker they enjoyed spending time with Mother and would like to see her more often. During visits, both A.N. and K.N. would tell Mother they loved and missed her. Maternal Grandmother, who monitored visits, told the social worker the Minors appeared to enjoy spending time with Mother and she behaved appropriately with them. Neither the social worker nor Maternal Grandmother had concerns over Mother's visits with the Minors.
VI. Jurisdictional Hearing and Dispositional Hearing
A. Jurisdictional Hearing
A jurisdictional hearing was conducted on June 14, 2023. SSA continued to recommend that the Minors remain in L.N.'s care. At the outset of the hearing, counsel stipulated that the Minors, if called to testify, would testify they loved Mother, felt safe with her, and wished to live with her. Both Mother and L.N. pleaded no contest to the petition, as amended by interlineation. The juvenile court found the allegations of the amended petition to be true by a preponderance of the evidence. All allegations against L.N. were stricken.
B. Dispositional Hearing
A bifurcated dispositional hearing was conducted on July 12, 2023. SSA recommended that the Minors continue to be placed with L.N. Minors' counsel and guardian ad litem concurred in SSA's recommendation. At the hearing, Mother testified consistently with SSA's reports, which were received into evidence. Mother further testified she would like the Minors returned to her. Her biggest wish is they stay happy and comfortable. Mother loves L.N. and would like to coparent with him. Mother was happy the Minors were living with L.N. because "they get to bond now" and "so far nothing bad has happened."
The juvenile court declared the Minors to be dependent children under section 360, subdivision (d). The court found by clear and convincing evidence that section 361, subdivision (c)(1) applied and "the children will be at risk of substantial danger of physical health, safety, protection, or physical or emotional well-being." The court also found: "To vest custody with the mother would be detrimental to the children and to vest custody with the father is required to serve the children's best interest."
DISCUSSION
I. Relevant Law and Standard of Review
After the juvenile court exercises jurisdiction over a minor, the court must conduct a dispositional hearing (§ 358) at which the court must decide where the child will live while under the court's jurisdiction (In re Hailey T. (2012) 212 Cal.App.4th 139, 145 (Hailey T.)). Removal of the child from a parent's physical custody is one option. To remove a child from parental custody, the court must make at least one of five specified findings by clear and convincing evidence. (§ 361, subd. (c)(1)-(5).) As relevant here, section 361, subdivision (c) provides: "A dependent child shall not be taken from the physical custody of his or her parents . . . unless the juvenile court finds 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." (Id., (c)(1).)
We review a removal order under the substantial evidence standard. (In re M.D. (2023) 93 Cal.App.5th 836, 856-857 (M.D.).) Because section 361, subdivision (c)(1) requires proof by clear and convincing evidence, we must "account for" that heightened standard by determining whether "the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011; see M.D., at p. 857 [standard of review described in Conservatorship of O.B. applies to removal findings under § 361, subd. (c)].)
The usual rules of appellate review otherwise apply: We do not evaluate witness credibility, resolve conflicts in the evidence, or determine its weight. (M.D., supra, 93 Cal.App.5th at p. 857.) We view the record in the light most favorable to the removal order and draw all reasonable inferences in its support. (Ibid.) "[T]he appellant bears the burden of showing '"there is no evidence of a sufficiently substantial nature"' to support the dispositional removal order." (In re L.O. (2021) 67 Cal.App.5th 227, 245.)
II. Substantial Evidence Supports the Juvenile Court's Finding that There Would Be Substantial Danger to the Well-being of the Minors If They Were Returned to Mother
Mother argues substantial evidence does not support the juvenile court's order removing the Minors from her care. We conclude the record contains substantial evidence from which a reasonable fact finder could have found it highly probable that the physical health, safety, protection, or physical or emotional well-being of the Minors would be in substantial danger if they were returned to Mother's care.
A. Effect of Mother's No Contest Plea
But before turning to the evidence in the record, we address SSA's argument that Mother's no contest plea constituted an acquiescence to the jurisdictional findings. A plea of no contest at a jurisdiction hearing to allegations under section 300 in a juvenile dependency petition constitutes an admission of "all matters essential to the court's jurisdiction over the minor." (In re Troy Z. (1992) 3 Cal.4th 1170, 1181.)
Mother is not, however, challenging the sufficiency of the evidence to support the jurisdiction allegations of the dependency petition. Mother is not challenging dependency jurisdiction at all: she is challenging only the decision to remove the Minors from her custody. Accordingly, Mother's plea has no impact on the issues she raised in this appeal.
B. Review of the Evidence
Turning to the evidence, we observe, as Mother claims, no evidence was presented that she ever physically harmed K.N. or A.N. or that there had ever been any domestic violence in the home. SSA concedes that, before January 2023, there were no documented concerns regarding Mother's mental health impairing her ability to safely care for the Minors. The social worker's investigation of the home disclosed no safety hazards and plenty of food in the home. The Minors were clean, well groomed, healthy, and well cared for by Mother. The parties stipulated the Minors loved Mother and wanted to live with her. There is no question that Mother loves the Minors.
Here, the evidence supported findings Mother was unwilling to take steps to resolve her mental health and substance abuse issues, as she denied having those issues. Mother ceased taking her medications, including those for psychosis and depression. As of June 2023, Mother had no formal psychiatric diagnosis because she had failed to attend her appointments at Open Access Mental Health Services. She refused to participate in a substance abuse treatment program because participation in substance abuse treatment would be an admission that she was an addict.
Neither Mother's mental health issues nor her substance abuse issues alone are a valid basis for removing the Minors from Mother's care. "'Harm to a child cannot be presumed from the mere fact the parent has a mental illness.'" (In re Travis C. (2017) 13 Cal.App.5th 1219, 1226.) "The finding of dependency cannot be based on substance abuse alone; jurisdiction requires a substantial risk of harm to the child arising from the substance abuse." (In re J.A. (2020) 47 Cal.App.5th 1036, 1046.)
In addition, Mother's mental health issues and substance abuse issues had manifested themselves in ways which made it highly probable the Minors would be at substantial risk of harm if returned to Mother's care. Maternal Grandmother reported that she had received calls from the Minors in which they asked her to bring food because there was none in the house. A.N. told the social worker that "'once in a while'" she would be hungry and there would be no food in the home, or she would have no clean clothes to wear.
School officials expressed concern that Mother was neglecting the Minors. The school principal and psychologist told the social worker they had observed a change in Mother's behavior: While Mother's behavior previously did not cause them alarm, Mother now "present[ed]" as "erratic and inconsistent." Maternal Grandmother reported that Mother had often made reports to the police based on delusions that she was in danger. Mother eventually stopped sending the Minors to school because she believed they were in danger.
This evidence supported the trial court's ruling that Minors were at risk of potential harm, and thus we affirm that ruling.
III. The Juvenile Court Erred by Not Considering Alternatives to Removal
Mother argues the juvenile court erred by not considering less drastic alternatives to removing the Minors from her care. On this point we agree with Mother. Removal of a child from his or her parents is a last resort to be considered only when the child would be in danger if allowed to reside with the parents. (Hailey T., supra, 212 Cal.App.4th at p. 146.) Before the court may order a child physically removed from his or her parents, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
A dependent child may not be removed from the parents' physical custody unless "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(c)(1).) "[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." (Hailey T., supra, 212 Cal.App.4th at p. 148.)
As to both A.N. and K.N., the juvenile court found "pursuant to . . . section 361[, subdivision] (d) that reasonable efforts were made to prevent or eliminate the need for removal of the [Minors] from Mother's home." However, the court did not "'state the facts'" supporting its finding. (In re Ashly F. (2014) 225 Cal.App.4th 803, 810.) Nothing in the record shows that the juvenile court considered less drastic alternatives to removing the Minors from Mother's care.
Based on the appellate record, we cannot state substantial evidence supports a finding that no alternative to removal of the Minors from Mother's care might be available and appropriate. As we have pointed out, there was no evidence Mother physically abused the Minors or of any domestic violence in the home, and no question has ever been raised about her love of the Minors or their love of her. The Minors attended school, and the record shows that teachers and administration at their schools were diligent in looking after them. Maternal Grandmother is a strong and assuring presence in the Minors' lives and has made herself available to care for the Minors when Mother is unable to do so.
There were possible alternatives to removal to consider. At the dispositional hearing, Mother's counsel proposed custody be split between L.N. and
Mother as an alternative to removal. Mother's appellate counsel now makes the same proposal. Another alternative might be to return the Minors to Mother's custody "under stringent conditions of supervision by the agency such as unannounced visits." (Hailey T., supra, 212 Cal.App.4th at p. 148.)
Hailey T., supra, 212 Cal.App.4th 139 is instructive. In that case, the record contained no evidence that the dependent child had been abused in the parents' home, that either parent inflicted any physical harm on the child, or that there was any domestic violence between the parents. (Id. at pp. 147-148.) The child attended school, where she was in contact with teachers and other mandated reporters of abuse. (Id. at p. 147.) There, the Court of Appeal concluded that the juvenile court erred by ordering the child removed from the parents' care without considering the alternatives of returning the child to parental care under stringent supervision by the social services agency, as stated above. (Id. at p. 148.) The Hailey T. court remanded with the admonishment that "[a]ll such alternatives must be explored before concluding that removal of a minor from the home is necessary." (Ibid.)
The juvenile court in this case did not explore all such alternatives to removal of the Minors from Mother's care. Accordingly, we reverse the removal order and remand with directions to the juvenile court to conduct a new hearing on the placement of the Minors. The decision whether to order an alternative to removal is within the juvenile court's discretion, as set by the legal criteria, upon consideration of the alternatives.
We are mindful of the fact that eight months have passed since the dispositional hearing and during that time circumstances relevant to placement of the Minors might have changed. On remand, the juvenile court should consider alternatives to removal of the Minors from Mother's care, or keeping the current removal order in place, based upon the facts and circumstances up to the date of the post-remand hearing. In the meantime, the placement in effect on the date this opinion is issued shall remain in effect.
DISPOSITION
We reverse that part of the dispositional order removing the Minors from Mother's custody. The matter is remanded to the juvenile court with directions to conduct a new dispositional hearing to consider placement of the Minors in accordance with this opinion. Nothing in this opinion is intended to foreclose the juvenile court from considering new evidence or changed circumstances that may have arisen during the pendency of this appeal. In all other respects, the dispositional findings and orders are affirmed.
WE CONCUR: GOETHALS, ACTING P. J. GOODING, J.