Opinion
B319944
01-12-2023
In re JAYSON W., a Person Coming Under the Juvenile Court Law. v. ASHLEY W. Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the order of the Superior Court of Los Angeles County, No. 20CCJP06321A Philip L. Soto, Judge. Affirmed.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
HOFFSTADT, J.
Ashley W. (mother) appeals the juvenile court's findings six months into the reunification period in this dependency case. Specifically, she argues that the court erred in (1) finding that the Los Angeles Department of Children and Family Services (the Department) made "reasonable efforts" to provide her reunification services, (2) finding that returning her infant son to her would be detrimental to him, and (3) refusing to transfer the case back to Santa Clara County, where mother moved during the six-month period. We conclude that the first issue is moot, and the second two issues are without merit. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
We draw many of these facts from our prior opinion issued on November 3, 2022 (and, at times, do so verbatim), wherein mother appealed from the juvenile court's assertion of dependency jurisdiction on supplemental grounds as well as its removal of mother's son from her custody. (In re Jayson W. (Nov. 3, 2022, B314711) [nonpub.].)
I. Mother's Domestic Violence and Anger Issues
On August 28, 2020, mother and Jonathen D. (father) were riding on light-rail mass transit. Mother was holding her son, Jayson W., who was a few weeks old. Mother and father were having a verbal argument. As mother became increasingly upset, she "forcefully handed" the newborn to father, and then proceeded to slap father repeatedly while he held the newborn. When the police arrived, mother grabbed Jayson and tried to run from the police while holding the baby.
This was not the first incident of domestic violence between mother and father. On prior occasions, father had poked and pinched mother, pulled her hair, choked her, and pulled a gun on her. Mother also had anger issues.
II. Mother's Exhibition of Poor Judgment
A. Before initial jurisdictional and dispositional hearing
Mother elected to give birth to Jayson in the back seat of her car because she did not trust doctors. The parents called 911 only because they saw more blood than they had anticipated. The responding medical personnel insisted that mother and Jayson be transported and admitted to the hospital. Mother tried to sneak out overnight with the baby, but was not permitted to leave.
When questioned about mother's conduct, Jayson's maternal grandmother reported that mother's "thought process is not logical."
B. After initial jurisdictional and dispositional hearing
In the fall of 2020 and winter of 2021, mother became increasingly obsessed with a dental surgery she had undergone as a teenager, which mother felt gave her "negative energy." She blamed her parents (the maternal grandparents). Mother started cursing at the maternal grandparents in person and in text messages. Mother would also call father from the maternal grandparents' house and put him on speakerphone, where he would "yell and curse" at them and even threaten to "rape and kill" the maternal grandmother. In early to mid-March 2021, mother's ever-escalating agitation boiled over into violence: As the maternal grandparents were driving away, mother hit their car with her hand and may have thrown objects-all while holding Jayson. A few weeks later, when the person mother was living with asked the maternal grandparents to come to the house to help mother care for Jayson when mother was sick, mother yelled at the maternal grandparents and called the police.
In the spring of 2021, mother started engaging in erratic behavior. When mother traveled to Santa Clara County in violation of the juvenile court's order not to leave Southern California, the social worker who approached mother observed she was like a "zombie." More troubling, Jayson also "appeared tired and hungry," and mother was not tending to his needs. A few days later, mother was still "zone[d] out" and staring unblinkingly at the wall, all the while ignoring that Jayson was putting several choking hazards in his mouth, including a toothbrush. A few weeks after that, mother again had an "unusual[ly] flat affect," would take "irregular long pauses" during conversation, and "frequently made contradictory statements" and appeared "slightly paranoid." Through this time, mother denied that she had any mental health issues and denied that she had done "[any]thing wrong" during the light-rail incident with father.
During this time, a therapist who examined mother opined that mother's "perception of . . . events" was "definitely off."
III. Assertion of Dependency Jurisdiction
A. Initial jurisdictional and dispositional hearing
A petition to exert dependency jurisdiction over Jayson was initially filed in Santa Clara County.
When mother moved with Jayson down to Los Angeles County, the pending case involving Jayson was transferred to the juvenile court in Los Angeles County.
In fall 2020, the juvenile court sustained the petition and exerted dependency jurisdiction over Jayson on two grounds- namely, that (1) the "parents have a history of domestic violence," which included the August 2020 incident when mother "forcefully handed the baby to father" and then slapped father "several times" "on his face while . . . father was holding the baby," and (2) mother and father have "neglected the infant's basic needs" by intentionally giving birth to the baby in the car and not sufficiently hydrating the baby during his first month of life. These findings were based on subdivisions (b) and (c) of Welfare and Institutions Code section 300.
The court also sustained the allegations that (1) mother had been arrested and father was "unable to care for" Jayson, and (2) father had "ongoing and untreated mental health issues."
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The juvenile court did not remove Jayson from mother's custody.
B. Supplemental jurisdictional and dispositional hearing
In July 2021, the juvenile court sustained allegations contained in a supplemental petition filed by the Department- namely, that (1) mother "engaged in violent and assaultive behavior" with the maternal grandparents in March 2021, and (2) mother "has a history of unresolved mental and emotional problems" that "render[ her] unable to provide regular care for" Jayson. These findings were based on subdivision (b) of section 300.
The juvenile court removed Jayson from mother's custody.
Initially, Jayson was placed with the maternal grandparents, who at the time lived just a few miles from mother on the Ventura County side of the Los Angeles-Ventura County line.
In mid-September 2021, Jayson was placed with maternal cousins who lived in Kern County.
IV. Reunification Period
A. Mother's case plan
After the juvenile court sustained the supplemental petition, it created a "case plan" for mother that required her to (1) complete a parenting course, (2) complete a psychological assessment, and (3) participate in individual counseling with a licensed and approved therapist that is designed to address the issues of (a) child protection and safety, (b) mother's mental health, and (c) mother's fixation with her prior orthodontic surgery. The court also permitted mother to have monitored visits with Jayson.
B. Six-month status review hearing
By February 2022, Jayson was living with his maternal cousins in Kern County and had a "strong bond" with them and their other children. By that date, mother had also voluntarily left her residence in Los Angeles and moved to Santa Clara County with no plan for housing and no job. Mother became homeless, although she has friends in the area whose home she would use from time to time. Mother refused to accept telephone calls from the Department's social worker, instead insisting upon dealing with her only through email and text messages. Mother demanded that the Department supply her with an apartment, buy her a car, and buy her a laptop computer.
Mother argues that she was "told" to move out of her residence in Los Angeles, but the maternal grandparents dispute that characterization. Under the substantial evidence standard of review, we must credit the maternal grandparents' account over mother's.
Between July 2021 and February 2022, mother progressed as follows with her case plan:
• Parenting classes. Mother completed the parenting classes, but the monitors observing mother's visits with Jayson reported that mother (1) "has not shown any progress in making changes necessary to ensure child safety," (2) did not "engage" Jayson, and (3) did not "show[] a knowledge of age-appropriate engagement," as she often "play[ed] rap music with inappropriate lyrics."
• Psychological assessment. Mother completed the psychological assessment. After meeting with Dr. Irene Guerra three times (twice in person and once remotely), Dr. Guerra issued a report in January 2022. In that report, Dr. Guerra opined that (1) mother was within the normal or "mildly impaired" ranges in her intellectual functioning, attention and concentration, and reasoning and problem solving, (2) mother's tests "indicated no presence of clinical psychopathology," (3) mother's "self-report" of "emotional functioning" denied any "problems with social interactions" as well as any other "symptomology," but Dr. Guerra observed "several" peculiarities in mother's "behavior[]"-namely, that (a) mother "did not respond to typical social communication cues such as ending a conversation, leaving a room, or adjusting behaviors to suit various social conte[x]ts," and (b) mother "displayed insistence on sameness and demonstrated inflexible adherence to routines." These peculiarities, Dr. Guerra reported, did not qualify as "autism spectrum disorder" but gave "a diagnostic impression of [a]djustment [d]isorder" and indicated a "possible neurodevelopmental disorder." Dr. Guerra recommended further testing "to rule out a neurodevelopmental, social communication, and spectrum disorder."
• Individual counseling. Although mother was not able to locate a licensed therapist in Santa Clara County, she attended 20 sessions with a therapist trainee. In February 2022, the trainee reported that mother was "making progress on [her] treatment goals," but did not report mother making "any positive . . . change" in her behavior. This was likely because mother "continue[d] to state that she does not need therapy and [wa]s only participating" because the court is ordering her to do so. In the 30 days preceding the February 2022 six-month status review hearing, the trainee reported that mother showed a "lack of progress and possibly even a regression in [her] progress."
• Visitation. Mother regularly attended the monitored, video visits with Jayson. The monitors reported that the "quality" of the visits was "poor" because mother "struggles with engaging [Jayson]," "appears unaware of child development norms, and often spends much of the visit[s] watching Jayson silently." Perhaps most concerning, mother's "reaction" to Jayson's "social cues or needs" was "non-existent."
The juvenile court convened the six-month status review hearing on February 28, 2022. The court found that the Department had made "reasonable and/or active efforts to provide or offer reasonable [reunification] services" to mother, but that mother was "not in substantial compliance" with her case plan. However, the court elected to grant mother another six months of reunification services because mother had nevertheless "made significant progress in resolving problems that [led] to the removal and demonstrat[ed] the capacity and ability to complete objectives [of] the treatment plan." The court declined to return Jayson to mother's custody because doing so would "create a substantial risk of detriment to the child." As part of the additional six months of reunification services, the court ordered mother to complete "PCIT services" at the request of mother's attorney. The court also denied mother's request to transfer the case back to Santa Clara County.
C. Twelve-month status review hearing
This is discussed separately in the companion opinion of Ashley W. v. Superior Court, No. B323250.
V. Appeal
Mother filed a timely appeal from the juvenile court's orders from the six-month status review hearing.
DISCUSSION
In this appeal, mother challenges three rulings from the six-month status review hearing. Specifically, she argues that the juvenile court (1) erred in finding that the Department had made "reasonable efforts" in providing mother the services needed to complete her case plan, (2) erred in finding that Jayson would suffer a detriment if returned to her custody, and (3) erred in not transferring the case back to Santa Clara County, where mother resided at the time.
The first issue is moot. If the child is not returned to the parent after the six-month review, the court "shall determine whether reasonable services that were designed to aid the parent" "in overcoming the problems that led to the initial removal" have been "provided or offered" to the parent. (§ 366.21, subd. (e)(8).) A court may not keep a removal order in effect or initiate proceedings to terminate parental rights unless it finds that the Department has provided the "reasonable services" previously ordered by the court. (Ibid.; Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594, 596-597; Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) The remedy for a department's failure to make "reasonable efforts" in providing reunification services to a parent is "to provide an additional period of reunification services to that parent" equal to the statutory minimum period. (In re A.G. (2017) 12 Cal.App.5th 994, 1005 (A.G.); accord, T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1256.) The remedy is not to return the child to the parent where, as here, there is an adequately supported finding of detriment. (In re Alvin R. (2003) 108 Cal.App.4th 962, 975.) Because, for a child under the age of three, the statutory minimum period of reunification services is six months (§ 361.5, subd. (a)(1)(B)), and because the juvenile court granted mother an additional six months of reunification services, mother has already obtained the relief she would obtain if we determined that the Department's efforts were less than reasonable. An issue is moot, as here, when the court cannot grant effective relief. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 10541055 (Esperanza C.) [issue is moot when "the occurrence of an event renders it impossible for the appellate court to grant . . . effective relief"].) Although the remedy for unreasonable efforts also includes having the juvenile court's finding of reasonable efforts stricken (A.G., at p. 1005), the continued existence of an improper finding of reasonable efforts has no effect on the issue of whether the Department made reasonable efforts during the next review period; to hold otherwise would mean that a department's efforts, once unreasonable, could never be reasonable. As a result, whether we leave the finding of reasonable efforts intact or strike it has no effect. The issue is still moot. (Esperanza C., at pp. 1054-1055 [issue is moot if appellate court's decision "would [not] affect the outcome of the case in a subsequent proceeding"].)
I. Finding of Detriment
At the six-month hearing to assess the progress of family reunification services, a juvenile court is required to return a child to his parent's custody unless it "finds, by a preponderance of the evidence, that the return of the child to their . . . parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e)(1); Cal. Rules of Court, rule 5.810(a)(2); In re Heather B. (1992) 9 Cal.App.4th 535, 545.) This is a "fairly high" standard, and one on which the Department bears the burden of proof. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789; § 366.21, subd. (e)(1).) We review a juvenile court's finding that such detriment exists for substantial evidence, asking only whether the court's finding is supported by evidence that is "'reasonable, credible, and of solid value'" (In re E.D. (2013) 217 Cal.App.4th 960, 966), and doing so while construing the record in the light most favorable to the court's finding (In re A.C. (2020) 54 Cal.App.5th 38, 43).
Whether the placement of a child with his parent would be detrimental is to be examined by looking at the totality of the circumstances. (See A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1059.) A parent's "failure . . . to . . . make substantive progress" with her case plan is "prima facie evidence that return would be detrimental." (§ 366.21, subd. (e)(1); In re Mary B. (2013) 218 Cal.App.4th 1474, 1483.) However, even if a parent is in substantial compliance with her case plan, other circumstances may still warrant a finding of detriment. These circumstances include (1) the "effect . . . return [to the parent's custody] would have on the child" (In re Joseph B. (1996) 42 Cal.App.4th 890, 894), which includes, as pertinent here, (a) whether that return will "sever[] [the child's] positive loving relationship with the foster family," thereby "caus[ing] serious, long-term emotional harm" (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704-705), (b) the "failure of [the child] to have lived with the natural parent for long periods of time" (id. at p. 705), and (c) "the manner in which the parent has conducted . . . herself in relation to [the] minor in the past" (ibid.), (2) instability in terms of how the parent manages her home (In re John V. (1992) 5 Cal.App.4th 1201, 1212), and (3) the parent's limited awareness of the emotional and physical needs of the child (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142).
Substantial evidence supports the juvenile court's finding that returning Jayson to mother's custody would create a substantial risk of detriment to his safety, protection, or physical or emotional well-being. As a threshold matter, the court found that mother was not in substantial compliance with her case plan. This subsidiary finding is also supported by substantial evidence because mother was making "minimal progress" with her individual therapy (and, in the days leading up to the status review hearing, regressing on that progress) and because the "poor" "quality" of her visits with Jayson-and, in particular, her inability to pick up on Jayson's cues and needs-indicated that the parenting classes she had attended had not altered her behavior. What is more, mother's failure to pick up on Jayson's cues and needs is what placed Jayson in danger because mother was not properly feeding him or monitoring him (for example, by allowing him to put objects that pose a choking hazard in his mouth). Further, and even if we assume that mother was in substantial compliance with her case plan, other circumstances support the finding of detriment. Placing Jayson with mother would have a detrimental effect on Jayson because, at the time of the six-month status review hearing, Jayson had strongly bonded with the maternal cousins who were his caregivers, Jayson had lived with mother for 11 months but then lived elsewhere for the next seven months, and mother's conduct toward Jayson-in "forcefully handing" him to father and neglecting his basic needs-had endangered Jayson. Mother's home was unstable, chiefly because she recklessly left a residence in Los Angeles County with no plan for housing in Santa Clara County, which resulted in her homelessness. And mother's limited awareness of Jayson's needs is precisely what necessitated dependency jurisdiction in the first place and, based on the quality of the visits, had not changed.
Mother resists our conclusion with four clusters of arguments.
First, mother asserts that she has "removed the risk factors in the case" because she eliminated all risk of domestic violence by moving away from father and the maternal grandparents, because she has no mental or emotional issues, and because she is in substantial compliance with her case plan. We reject mother's assertions. Domestic violence was only one of mother's issues, and mother had not resolved the other chief issue- namely, the mental and emotional issues that caused mother to ignore Jayson's basic needs. Although mother is correct that the psychological assessment indicated that mother did not have any "clinical psychopathology," the assessment also indicated that mother still had behavioral peculiarities that may be caused by a "possible neurodevelopmental disorder" and, more to the point, that caused her to miss the cues of others and to have an inflexible adherence to routines-which are precisely the issues that others observed mother having when she "zone[d] out" and ignored Jayson's need for food, water and supervision. The juvenile court also had ample support for its finding that mother was not in substantial compliance with her case plan, for the reasons noted above. The court's observation that mother had "made significant progress in resolving problems that [led] to the removal and demonstrat[ed] the capacity and ability to complete objectives [of] the treatment plan" is not, as mother suggests, inherently inconsistent with the court's finding that mother was "not in substantial compliance" with her case plan. The court's observation about mother's progress was directed to explaining why it was granting another six months of reunification services over the Department's request that further services be denied. Further, mother's "significant progress" does not mean that she was in substantial compliance given that mother's progress with her individual therapy was "minimal" and the parenting classes she completed had, based on mother's visits with Jayson, not translated into any positive change in mother's behavior toward the care of Jayson.
Second, mother contends that the juvenile court made several missteps in its analysis of detriment-namely, that the court referred to the parental bond mother had with Jayson (which is irrelevant to the question of detriment), that the court referred to mother's homelessness (which is an impermissible factor), that the Department unfairly summarized the psychological report and thus construed the report's recommendations unreliably, and that the court misunderstood the record when it asserted that mother moved to Santa Clara County without the Department's knowledge. We reject these contentions, as they rest on a misreading of the record. Although mother is correct that a child's bond with his parent is not relevant to whether placement with that parent will pose a detriment to the child (David B., supra, 123 Cal.App.4th at pp. 788-789), the juvenile court here stated: "If mother is not going to be able to visit on a regular basis and to do what needs to be done to bond with this child, . . . we are going to have a very tough time justifying a return if she's going to continue to live in [Santa Clara County]." The court's reference to bonding was to state that mother's move to a different county will impact her ability to visit and hence bond; this is not a finding that the absence of any bond was a detriment to Jayson. Although mother is also correct that a parent's lack of housing cannot be the basis for a finding of detriment (e.g., In re G.S.R. (2008) 159 Cal.App.4th 1202, 1213; In re Serenity S. (2020) 55 Cal.App.5th 355, 373 (Serenity S.)), the juvenile court based its detriment finding-not on mother's homelessness-but instead on her lack of substantial compliance with her case plan and the dangers that it posed to Jayson. The cases mother cites acknowledge that "parenting ability" is a proper basis for a finding of detriment. (Serenity S., at p. 376.) Mother's complaint that the Department did not fairly characterize the psychological assessment report is inaccurate and, because the full report was provided both to the juvenile court and to us, irrelevant. And the juvenile court here did not state that mother moved to Santa Clara County without the Department's knowledge; instead, the court merely commented that mother moved out of Los Angeles County without asking the Department for assistance in finding housing in Los Angeles County. That is an accurate statement.
Third, mother argues that Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1332 (Jennifer A.) compels reversal of the juvenile court's detriment finding. It does not. In Jennifer A., the children were removed from mother's custody because she left them alone on one occasion when she went to work. (Jennifer A., at p. 1326.) The mother's therapist at the six-month status review hearing reported that the mother was "'"far removed from ever leaving children unattended,"'" "had learned "'proper parenting and boundaries of protecting the children,"'" and "had accepted 'responsibility for the circumstances that caused the children to be brought into custody.'" (Id. at p. 1344.) Here, by contrast, mother's conduct during visitation indicated that mother had not learned proper parenting techniques and was still being inattentive to Jayson's needs in the same manner that placed him in danger in the first place, and mother continued to deny that she had any problems warranting therapy. If anything, Jennifer A. supports the finding of detriment here.
Fourth, mother argues that the juvenile court did not spell out the "factual basis" for its finding of detriment. Again, this argument rests on a misreading of the record. A juvenile court is required to "specify the factual basis for its conclusion that the return [of a child to his parent] would be detrimental." (§ 366.21, subd. (e)(2).) The juvenile court did just that in this case when it indicated that mother was not in substantial compliance with her case plan, which is prima facie evidence of detriment.
II. Transfer Back to Santa Clara County
A juvenile court has the discretion to transfer a juvenile dependency case to a different county if (1) the parent has moved to that county (§ 375, subd. (a)), or (2) the child has moved to that county (Cal. Rules of Court, rule 5.610(c), (d), (e).) In either circumstance, whether to transfer is left to the juvenile court's discretion and turns on whether the transfer would be in the best interest of the child. (In re J.C. (2002) 104 Cal.App.4th 984, 992993 (J.C.); In re Nia A. (2016) 246 Cal.App.4th 1241, 1247-1248; In re Andrew J. (2013) 213 Cal.App.4th 678, 692.) We review a juvenile court's discretionary decision not to transfer a case for an abuse of that discretion. (J.C., at p. 993.)
The juvenile court did not abuse its discretion in declining to transfer this case back to Santa Clara County at the six-month review status hearing. At that point in time, Jayson was living with his maternal cousins-with whom he had a "strong bond"- in Kern County, while mother had moved to Santa Clara County. Given the stability of Jayson's placement in Kern County, and the Department's regular contact with mother in Santa Clara County, the juvenile court acted within its discretion in opting to leave the case in Los Angeles County rather than transfer the case a second time. Moving the case to Santa Clara County would not have enabled mother to have any greater access to Jayson for in-person visits. And contrary to mother's argument, there is no evidence in the record to support her assertion that the Santa Clara County social services agency would have been able to provide better reunification services to her. Indeed, the record indicates that where the Department contacted its Santa Clara County counterpart for help in assisting mother, the Department implemented that counterpart's advice and offered precisely the same services mother would have received from the Santa Clara County agency. Mother's assertions to the contrary are speculative.
Mother complains that the juvenile court told mother that she had to move back to Los Angeles County if she wanted to regain custody of Jayson. This is a misstatement of the record. The court stated: "If mother is not going to be able to visit on a regular basis and to do what needs to be done to bond with this child, . . . we are going to have a very tough time justifying a return if she's going to continue to live in [Santa Clara County], and we don't know exactly where she is." The court was not issuing an ultimatum; it was pointing out that mother's independent decision to move was going to make it more difficult for her to reunify. A juvenile court's statement that a parent's decision not to complete her case plan would make it more difficult for her to reunify is not, as mother seems to suggest, an ultimatum. It is an explanation of cause and effect.
DISPOSITION
The order is affirmed.
WE CONCUR: LUI, P. J., CHAVEZ, J.