Filed 12/11/20 In re T.G. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re T.G., a Person Coming Under the Juvenile Court C091336
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD240060)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
K.B.,
Defendant and Appellant.
Appellant K.B., mother of the minor, appeals from the juvenile court’s jurisdiction
and dispositional orders. (Welf. & Inst. Code, §§ 360, 361, 395.)1 She contends there
was insufficient evidence to support the true finding that was the sole basis for
1 Undesignated statutory references are to the Welfare and Institutions Code.
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jurisdiction related to mother. She further contends the minor’s removal was
unsupported by the evidence.
We agree with mother’s first contention and reverse the contested jurisdictional
finding, but affirm the minor’s removal.
FACTUAL AND PROCEDURAL BACKGROUND
On August 26, 2019, Sacramento County Department of Child, Family and Adult
Services (the Department) filed a petition pursuant to section 300, subdivisions (b) and
(j), on behalf of the then three-week-old minor, T.G. The petition alleged the minor was
at risk of serious physical harm or abuse due to father’s ongoing anger management
problem and mother’s inability to protect the minor from father. The petition further
alleged mother had failed to protect the minor’s two half siblings from their father’s
(J.T.) substance abuse and neglect and had failed to reunify with those half siblings.2 The
minor was placed into protective custody the following day and formally detained on
August 30, 2019.
The Department filed an amended petition that removed the inability to protect
allegation as to mother and replaced it with the allegation that mother’s untreated mental
illnesses and poor judgment placed the minor at substantial risk of physical harm.
Specifically, the petition alleged that mother suffered from post-traumatic stress disorder
(PTSD) and depression, which impaired her judgment and ability to provide adequate
care and protection for the minor.
2 Mother had been the noncustodial parent of the half siblings. The social worker in that
case stated mother had known one of the half siblings was being sexually abused in J.T.’s
home but left the child in his care. Mother denied knowing about the sexual abuse but
admitted she knew about the condition of J.T.’s home, his drug use, his physical abuse of
the children, and the ongoing domestic violence in J.T.’s home between J.T. and his
girlfriend. )
2
This allegation was based on a 2017 mental health assessment, performed by
licensed clinical social worker Augusta Hunt. Hunt reported that mother had experienced
a traumatic event at age 11 and still had feelings of sadness, fatigue, low motivation, high
irritability, and regular and horrifying nightmares. Hunt concluded that mother was
experiencing clinically significant symptoms of PTSD and depression, which helped
explain her poor motivation, low self-esteem, and feelings of hopelessness. It was
recommended that mother participate in a psychiatric medication evaluation, as well as
counseling, but mother had not followed through with that recommendation.
The social worker’s reports also explained that mother had been in two prior
abusive marriages, including her first marriage with J.T. Then mother left her second
husband and became involved with father soon after his release from prison. He had
suffered a conviction in 2013 for punching the mother of his child in the face multiple
times and then grabbing a knife, holding it to her throat, and threatening her, all in the
presence of his toddler child.
After his release from prison, father threatened his sister, who is the guardian of
the minor’s sibling, by physically pulling the child away from her and telling her he
would “fucking kill” her. At his next visit, he cursed the guardian and trying to rip the
child and stroller away from her. The guardian stated father has always had anger issues
and that mother had told her she was also afraid of father’s anger and afraid that he might
hurt her. The guardian told of one instance, which she described as one of many similar
instances of violence, where father restrained the guardian’s son while swiping at her
with a butcher knife.
Father also had prior convictions in 2002 for battery on a former spouse and in
2003 and 2006 for sex with a minor more than three years his junior. Although mother
had claimed to be “staying away” from father in September 2017, the social worker in the
half siblings’ case observed that she continued to share all money, food, and shelter with
father. Mother admitted that if she should secure housing, she was very likely going to
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bring him into her home. Mother also admitted to the social worker in the half siblings’
case that she and father had a tumultuous relationship and that father continued to use
drugs.
Mother participated in services in 2016 in connection with the half siblings’ case
but failed to benefit from services and, according the social worker, elected to leave with
father instead of reunifying with the half siblings.
The minor was born in August 2019, after mother concealed her pregnancy from
the Department. Several meetings occurred between the Department and both parents
prior to the filing of the petition at issue here, during which father was extremely
uncooperative and hostile. He also repeatedly demonstrated controlling behavior to
which mother submitted. During an August 15, 2019 meeting, father “refused to allow
her to speak” to the social worker and answered all the questions himself. On August 19,
2019, mother left the drug testing center with father after he instructed her not to submit
to the drug test to which she had previously agreed. On August 20, 2019, father became
irate and aggressive and commanded mother leave the family team meeting with him.
When mother got up to leave, the Department supervisor attempted to explain the
purpose of the meeting and father began yelling: “You are not taking my fucking baby
out of my house.” Father was asked to leave and mother was advised of her option for
services without father. She responded that she needed to check with father, and left.
When she returned, she stated that father would not be participating in services and that
he would not be leaving the home.
Mother testified at the contested hearing and admitted she knew that father had
gone to prison after fighting with the mother of one of his children because he “beat her
up pretty badly.” She did not, however, understand how that incident was relevant to her
relationship with father. She denied telling the guardian that she was afraid of father,
stating the guardian tends to lie. Mother also noted father completed a domestic violence
course while in prison and claimed he had never shown aggression toward her.
4
Mother also testified that she was no longer suffering from PTSD or depression
and that her past trauma no longer impacts her, as evidenced by her ability to do her daily
routine, such as cleaning the house and taking care of her children when she has them.
She also began working in 2018 and continues to work.
Father testified he completed a 52-week domestic violence course during his most
recent incarceration. It was the third time he had completed that course. He had also
completed it in connection with previous domestic violence incidents with a “really bad
girlfriend” who he described as “this stupid girl.”
The juvenile court found true the jurisdictional allegation related to father: that
father had an anger management problem from which he has failed and/or refused to
rehabilitate and which impairs his judgment and ability to provide adequate care and
protection for the minor, and which places the minor at substantial risk of suffering
serious physical harm.3
The juvenile court also found true the allegation that mother suffers from PTSD
and depression, which impair her judgment and ability to provide adequate care and
protection for the minor, and that mother’s untreated mental illnesses place the minor at
substantial risk of physical harm. In making this finding, the court relied on Hunt’s 2017
mental health assessment, which we have described in pertinent part ante. Noting that
Hunt had recommended mother participate in a psychiatric medication evaluation and
counseling but mother had not followed through with that recommendation, the court
observed that PTSD and depression “do not typically resolve themselves without
significant intervention of the type recommended by [] Hunt” and found by a
preponderance of the evidence that mother was continuing to suffer from those
conditions.
3 Mother does not contest the adequacy of this finding on appeal.
5
The juvenile court further found that mother’s untreated mental health issues
created a substantial risk that the minor would suffer serious physical harm. In making
that finding, the juvenile court noted that the minor was reported to have hygiene
concerns at detention, and that mother’s and her home’s hygiene were also cause for
concern. The court also briefly referenced father’s marijuana use and the possibility of a
relapse by mother given her mental health issues.
The juvenile court ordered the minor removed from parental custody and ordered
reunification services for both parents. Mother timely appealed from the dispositional
hearing.
DISCUSSION
I
Jurisdiction
Mother challenges the sufficiency of the evidence supporting the juvenile court’s
findings that she suffers from PTSD and depression that impair her judgment and ability
to provide adequate care and protection for the minor, that her symptoms include, but are
not limited to, poor motivation, low self-esteem, feelings of hopelessness, and horrifying
nightmares that cause her significant distress and make her fearful of sleeping, and that
her untreated mental health illnesses place the minor at substantial risk of suffering
serious physical harm. We agree the evidence is not sufficient to support these findings,
and accordingly reverse the court’s jurisdictional finding related to mother.4
4 While mother does not challenge the sufficiency of the evidence to support jurisdiction
based on father’s ongoing anger management problems, because mother may suffer
ancillary consequences from the jurisdictional finding that her unresolved mental health
issues create a substantial risk to the minor’s physical health and safety, we nonetheless
address her argument that the evidence was insufficient to support jurisdiction on that
basis. (C.f. In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [when petition alleges
multiple grounds for assertion of jurisdiction, reviewing court can affirm if any one
statutory basis for jurisdiction is supported by substantial evidence].) )
6
The Department has the burden to prove jurisdiction by a preponderance of the
evidence. (§ 355, subd. (a); In re I.J. (2013) 56 Cal.4th 766, 773; In re Matthew S.
(1996) 41 Cal.App.4th 1311, 1318.) We review the jurisdictional finding for substantial
evidence, examining the record in the light most favorable to the judgment and drawing
all reasonable inferences from the evidence to support the findings and orders of the
dependency court. (In re I.J., at p. 773.)
As we have set forth ante, in making its findings regarding mother’s mental
health, the juvenile court relied on a report from more than two years prior that related
concerns with mother’s mental health at that time. Consideration of this report was not in
and of itself problematic, but its relevance was marginal due to its age. The court also
found mother’s testimony that she had no current mental health issues not credible; it was
well within its prerogative to do so. However, there was little to no evidence supporting
the conclusion that mother was currently suffering from PTSD and depression “which
impair her judgment and ability to provide adequate care and protection for the minor.”
Nor was there any evidence that mother was currently suffering from sadness, fatigue,
irritability, poor motivation, feelings of hopelessness or nightmares.5 While there was
some evidence that mother continued to have low self-esteem, as evidenced by her
codependency, this is insufficient, on its own, to establish that mother continued to suffer
from PTSD and depression. Although the court observed that PTSD and depression “do
not typically resolve themselves without significant intervention,” that observation is not
supported by any evidence presented by the parties, and accordingly we do not consider
the court’s observation as evidentiary support for its finding. The court’s conclusion that
5 Hunt noted mother was experiencing sadness, fatigue, low motivation, high irritability,
and “horrifying nightmares” in the psychosocial history section of her report. She
concluded that mother was experiencing clinically significant symptoms of PTSD and
depression and that “[t]hese symptoms help explain her poor motivation, low self-esteem,
and feelings of hopelessness.” )
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mother is continuing to suffer from symptoms of PTSD and depression was not
adequately supported by the evidence.
Nor is there substantial evidence to demonstrate that any mental condition of
mother’s created a substantial risk of serious physical harm to the minor. Because the
failure to protect allegation was abandoned, mother’s acquiescence to father’s violence
and controlling tendencies was not enough to show the one remaining allegation related
to mother--her mental health conditions and any risk generated therefrom--was supported
by adequate evidence. Although the juvenile court noted concerns about hygiene and
father’s marijuana use, there was no evidence that these risks were serious; more
importantly, there was no evidence that these concerns were related to mother’s 2017
diagnosis of PTSD or depression. Nor was it alleged, or found, that these hygiene or
marijuana issues were in and of themselves sufficient to form the basis for jurisdiction.
Thus there was insufficient evidence to support the allegation that there is a
substantial risk that the minor will suffer serious physical harm as a result of mother’s
PTSD and depression, as alleged in the amended petition. Accordingly, the juvenile
court’s true finding as to this allegation must be reversed.
II
Removal
Mother contends the dispositional order removing the minor from parental custody
is not supported by substantial evidence. We disagree.
Once the court has found that the minor is a person described by section 300, the
minor may be removed from the parents’ physical custody if the court finds clear and
convincing evidence that there is or would be a substantial danger to the minor’s physical
health, safety, protection, or physical or emotional well-being if the minor were returned
home, and there are no reasonable means by which the minor can be protected without
removal. (§ 361, subd. (c).) “The jurisdictional findings are prima facie evidence that
the child cannot safely remain in the home. (§ 361, subd. (c)(1).)” (In re Cole C. (2009)
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174 Cal.App.4th 900, 917.) The juvenile court is required to find removal necessary by
clear and convincing evidence. “When reviewing a finding that a fact has been proved
by clear and convincing evidence, the question before the appellate court is whether the
record as a whole contains substantial evidence from which a reasonable factfinder could
have found it highly probable that the fact was true. In conducting its review, the court
must view the record in the light most favorable to the prevailing party below and give
appropriate deference to how the trier of fact may have evaluated the credibility of
witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the
evidence.” (Conservatorship of O.B. (2020) 9 Cal 5th 989, 1011-1012.)
When the actions of one parent bring the minor within the jurisdiction of the
juvenile court, the court must consider, as a reasonable means of protecting the minor, the
option of removing the offending parent from the home or allowing the nonoffending
parent to retain physical custody, as long as the nonoffending parent presents a plan
acceptable to the court demonstrating that he or she will be able to protect the minor from
future harm. (§ 361, subd. (c)(1).) These alternatives were not available here.
Although the petition was (inexplicably) amended to omit the specific
jurisdictional allegation that mother had failed to protect the minor from father’s anger
management issues, those anger management issues alone did form a sufficient basis for
removal of the minor under the applicable standard of review recited above.
The evidence established convincingly that mother remained in a long-term
relationship with father and was clearly in a submissive role despite the detrimental effect
her compliance with his commands had on her ability to effectively parent and protect her
baby. Further, she had a history of living with dangerous men to the detriment of the
safety of her children. Despite the many reports of father’s aggressive and inappropriate
behaviors from the social workers as well as family members, substantiated by an
alarming criminal history of which mother was well aware and his current refusal to
participate in services, mother had told the Department that she and the minor would
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continue to live with father. She maintained that father did not have an anger problem
and she did not understand how his previous violence or anger was relevant to her or the
minor. She did not provide the juvenile court with any plan, let alone an acceptable plan,
to demonstrate how she would be able to protect the minor from father’s anger issues if
the minor remained in her care.6 These facts left the court with no evidence that mother
would be able to protect the minor if the minor remained in her care, or that she would
follow an order removing father from the home and limiting his contact with the minor.
In sum, father’s unresolved anger management problems, combined with his
refusal to participate in services, together with mother’s co-dependent behavior and
failure to acknowledge the need to protect the minor, was sufficient evidence to support
removal of the minor from parental custody.
6 Although mother asserts she was “statutorily” prevented from providing a plan
demonstrating that she could keep the minor safe while she and the minor were living
with father, describing her inability to be considered a nonoffending parent given the
jurisdictional allegation against her, she was never prevented from challenging the
removal itself by presenting a plan to keep the minor safe while in her care, and she
presented no such plan. To the contrary, she refused to admit that safety was an issue or
that any plan was necessary.
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DISPOSITION
The true finding on the section 300, subdivision (b)(1)-2 allegation contained in
the amended petition (filed September 20, 2019) is reversed. In all other respects, the
findings and orders of the juvenile court are affirmed.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Murray, J.
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