Sacramento Cnty. Dep't of Child, Family & Adult Servs. v. F.C. (In re D.D.)

• Decision Date: 20 February 2019
• Docket Number: C086808
• Citation: 32 Cal.App.5th 985,244 Cal.Rptr.3d 420
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE D.D. et al., Persons Coming Under the Juvenile Court Law. Sacramento County Department of Child, Family and Adult Services, Plaintiff and Respondent, v. F.C., Defendant and Appellant.

32 Cal.App.5th 985

244 Cal.Rptr.3d 420

IN RE D.D. et al., Persons Coming Under the Juvenile Court Law.Sacramento County Department of Child, Family and Adult Services, Plaintiff and Respondent,

v.F.C., Defendant and Appellant.

C086808

Court of Appeal, Third District, California.

Filed February 20, 2019

Richard L. Knight under appointment by the Court of Appeal, for Defendant and Appellant Mother F.C.

Robyn Truitt Drivon, County Counsel and Elizabeth H. Wright, Deputy County Counsel, for Plaintiff and Respondent.

HULL, Acting P. J.Appellant F.C. (mother) appeals the juvenile court’s order removing her four children from her custody following true findings made on Welfare and Institutions Code section 387 supplemental petitions. (Unless otherwise stated, statutory section references that follow are to the Welfare and Institutions Code.) Mother challenges the sufficiency of the evidence to support the court’s findings that the previous placement with her was ineffective in protecting or rehabilitating the children and that removing the children from her custody was necessary to prevent substantial danger to them. She also argues that the court failed to consider reasonable alternatives to removal.

We conclude substantial evidence supports the court’s findings and dispositional order as to the section 387 supplemental petitions. We affirm the judgment.

FACTS AND PROCEEDINGS

F.C. is the mother of F.V., A.V., P.W., and D.D. At the time of the proceedings, the children were aged 16, 14, 12, and 5 years of age, respectively. They each have different fathers, who have extensive criminal records. Mother also has a criminal record.

In March 2016, the Sacramento County Department of Child, Family and Adult Services (Department) filed original section 300 petitions for each child, alleging mother had used excessive corporal punishment and physically abused the children, and had untreated anger management issues. Since 2002, the Department had received 15 referrals regarding mother and her children, two of which were substantiated.

According to the detention report, mother punched P.W. in the back and struck her with a windshield wiper blade resulting in bruising and marks on her body. Mother later pleaded no contest to a child abuse charge based on the incident involving P.W. ( Pen. Code, § 273a, subd. (b).) Mother had also hit A.V. and F.V. with a wire hanger and had punished the children by hitting them with cords, belts, and her hands. The court sustained the petitions, detained the children, and removed them from mother’s physical custody. Reunification services were ordered for mother.

Mother participated in services during the reunification period, including eye movement desensitization reprocessing therapy, individual counseling, and conjoint counseling with F.V. Comprehensive Wrap services through Uplift Family Services were also provided to the family. Service providers expressed concerns about mother’s aggressive behaviors and her inability to benefit from the services provided.

The children were eventually returned to mother’s care on May 22, 2017, although they remained dependents. The court ordered the Department to provide intensive supervision with the discretion to stop the supervision when it deemed it appropriate, and also ordered mother not to drive the children anywhere without a valid driver’s license in her possession since mother had been charged with driving under the influence in March 2017.

Shortly after the children were returned to mother, the Department received two child abuse emergency referrals. On June 12, 2017, it was reported that mother had disclosed that she made D.D. consume chili peppers or drink chili juice as a form of punishment for negative behavior. It was also reported that mother had reached into F.V.’s shirt to retrieve a phone and bus passes during a heated dispute. When the case carrying social worker and the emergency response social worker attempted to investigate the reported incidents, mother refused to allow the emergency response social worker in her home and did not allow them access to the children. She refused to speak to the emergency response social worker without her attorney present.

On June 27, 2017, the social worker reported that she received a text message from F.V.’s cell phone which was purportedly written by P.W. In the text message, which was set forth verbatim in the detention report, P.W. begged the social worker to remove her and F.V. from mother’s home; she accused mother of forcing a bar of soap into her mouth as a form of punishment, which caused her to hit her head on the wall, and also claimed that mother made her sit outside for an extended period of time in 99 degree heat, kicked her and threatened to pull her back into the house by her hair when P.W. refused to go back inside as mother directed. According to the Department, mother refused them access to the children to investigate and the referral was found inconclusive.

On July 11, 2017, the Department filed separate supplemental petitions under section 387 to remove the children from mother’s custody. The petitions alleged the above-described child abuse referrals, and also alleged that mother refused the Department access to the children to investigate, prevented the Department from completing face-to-face intensive supervision visitation with the children, and terminated court-ordered case plan services for the children. The petitions further alleged that mother failed to report her arrest for driving under the influence and that she transported F.V. without proof of a valid driver’s license.

On July 14, 2017, the court held a detention hearing for the section 387 petitions. The court found the Department established a prima facie case that the children were described by section 387, and adopted the Department’s recommended findings and orders, including that there was a substantial danger to the children’s physical health, that they were suffering severe emotional damage, and that there were no reasonable means by which they could be protected without removing the children’s physical custody from mother. The court also found that the Department had made reasonable efforts to prevent or eliminate the need for removal. The court detained the children from their mother and ordered minimal supervised visits.

On January 2, 2018, the court held contested jurisdictional and dispositional hearings on the section 387 petitions. At the hearing, the court admitted into evidence several reports and addendums. The matter was continued several times, and on March 5, 2018, the court found the allegations in the section 387 petitions true and sustained the petitions, finding the previous disposition of returning the children to mother’s physical custody had not been effective in protecting the children. The court found by clear and convincing evidence that the children remained at substantial risk of serious physical harm unless removed from mother’s care and that no service could be put in place to prevent the need for removal. The court removed custody of the children from mother. The court denied mother further reunification services, noting she statutorily ran out of time for reunification. Mother timely appealed.

DISCUSSION

I

Section 387 Supplemental Petitions

A section 387 supplemental petition, like the ones filed here, is used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of court-ordered care. ( § 387 ; Cal. Rules of Court, rule 5.560(c) ; further undesignated rule references are to the California Rules of Court.) A supplemental petition must contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child. ( § 387, subd. (b).)

The hearing on a supplemental petition is bifurcated. (Rule 5.565(e); In re Javier G. (2006) 137 Cal.App.4th 453, 460, 40 Cal.Rptr.3d 383.) ( In re Javier G. ) The court first conducts an adjudicatory hearing at which it must find by a preponderance of the evidence that the factual allegations of the supplemental petition are or are not true, and that the allegation that the previous disposition has not been effective is or is not true. (Rule 5.565(e)(1); Evid. Code, § 115 ; In re Javier G., at pp. 460-461, 40 Cal.Rptr.3d 383.) The rules governing jurisdictional hearings apply to the adjudicatory hearing phase on a supplemental petition. (Rules 5.565(e)(2), 5.682-5.684.) If the court finds that the allegations of a supplemental petition are true, it conducts a further dispositional hearing to determine whether there is a need to remove a child from his or her current level of placement. (Rule 5.565(e)(2); In re Javier G., at pp. 460-461, 40 Cal.Rptr.3d 383.) The rules that govern an initial disposition hearing apply to a further dispositional hearing on a supplemental petition. (Rules 5.565(e)(2), 5.690-5.705.)

It is only at the subsequent dispositional hearing that the clear and convincing standard for removal from parental custody under section 361, subdivision (c)(1) becomes pertinent. ( In re Javier G., supra, 137 Cal.App.4th at p. 461, 40 Cal.Rptr.3d 383 ; but see In re A.O. (2010) 185 Cal.App.4th 103, 111–112, 109 Cal.Rptr.3d 899 [recognizing that section 387 does not expressly require application of section 361, subdivision (c)(1) at the dispositional hearing phase; if there has been a prior removal by clear and convincing evidence, a later supplemental petition for removal from a parent need not always apply the section 361 subdivision (c)(1) standard at the disposition phase on a section 387 petition].) At the adjudication phase, the sole issue is whether the allegations in the supplemental petition are true that the previous disposition order has been ineffective in the protection or rehabilitation of the child. ( In re Javier G., at pp. 460-461, 40 Cal.Rptr.3d 383.)

"We review an order sustaining a ...