In re E.A.

























Filed 2/5/13 In re E.A. CA4/3









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.



IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

In re E.A., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. B.D., Defendant and Appellant.	G046996 (Super. Ct. No. DP022277) O P I N I O N

Appeal from orders of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Cheryl L. Leininger, Judge. Affirmed.

Jacob
I. Olson, under appointment by the Court of Appeal, for Defendant and
Appellant.

Nicholas
S. Chrisos, County Counsel,
and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

* * *

B.D. (mother) appeals
from the juvenile court’s jurisdictional and dispositional orders concerning
her daughter, E.A., who will be 18 years old in March 2013. Mother challenges the sufficiency of the
evidence to support the juvenile court’s dependency finding taking custody of
E.A. because mother could not keep E.A. safe from the dangerous, runaway
lifestyle she chose to escape the volatile home environment mother
provided. (See Welf. & Inst. Code,
§§ 300, subds. (b) [failure to protect] & (g) [caretaker
absence], 361, subd. (c) [removal from home]; all further undesignated statutory
references are to this code.) As we
explain, substantial evidence supports the juvenile court’s ruling, including
mother’s admissions she could not control E.A., did not want E.A. to return
home because of her behavior and accusations of abuse, that “it is best to let
go since E[.A.] does not want to come back,” and her statements on the eve of
trial reiterating she did not want E.A. returned to her care. We therefore affirm the juvenile court’s
dependency and out-of-home placement orders.

I

FACTUAL
AND PROCEDURAL BACKGROUND

At
the end of February 2011, less than a month before her 17th birthday, E.A. ran
away from home for the 30th time in less than a year. On most occasions, she fled for a day or
less, but sometimes she was gone up to three days. She usually went to her boyfriend’s home,
with whom she had begun drinking alcohol and smoking marijuana on an almost
daily basis before she turned 16 years old.
She admitted her boyfriend sometimes struck her. Nevertheless, she preferred his company to
mother’s because E.A. and mother fought frequently in incidents that included
hair-pulling, slapping, spanking, breaking dishes and, according to E.A.,
mother sometimes using a belt to discipline her and, recently, whipping her
with TV-DVD cable cords in anger and frustration.

Their
relationship had soured dramatically when E.A. turned 12 years old, and E.A.
did not understand why. Mother gave
birth to E.A. when mother was 15 years old.
Mother’s criminal history included a grand theft arrest for taking a
vehicle without consent, a misdemeanor conviction at age 19 for providing false
information to a peace officer, recent misdemeanor convictions in 2007 for
criminal threats, battery, and vandalism, Vehicle Code violations for driving
without a license, and convictions for driving under the influence (DUI) in 2008
and 2009. By her early 20’s, mother had
three other children fathered, like E.A., by different gang members who did not
remain in the children’s lives. Child
welfare records showed five contacts with mother, most recently in 2008 when
E.A. came to school with bruises on her upper arms. But E.A. explained she sustained the bruises
in a fight with her brother because she was teasing him, she denied she feared
mother, and child protective services
(CPS) closed this and other referrals as “unfounded.”

Mother
explained to a social worker in the present case that she had stopped drinking
and that her two DUI violations occurred in the midst of a broken romance and a
“partying” lifestyle she abandoned a few years earlier. Mother began to turn
her life around at that time, enrolling in a community college with plans to
get her G.E.D. and become a paralegal.
E.A. later wrote in a 2011 journal entry as her own problems escalated: “I’m afraid of my future. [¶]
I[’m] scared my life will be like my parents[’]. I won’t get to fin[i]sh school and I will be
hook[ed] on drugs and alcohol. I will go
to jail.”

The
police took E.A. into protective custody late in the evening on February 29, 2011, after
responding to a call from a youth pastor reporting potential child abuse. According to E.A., she ran away that day to a
girlfriend’s home to escape mother’s increasingly physical abuse, but the
friend was not home, so the friend’s parents drove her to their church, where
the minister called the police. E.A.
told the police she had been enduring her mother’s verbal and physical abuse
since age 12, but it had intensified in the last year due to E.A.’s poor school
performance, discipline problems at home, her relationship with a boyfriend,
and her habit of running away. According
to E.A., mother punched her in the left cheek with a closed fist during a
confrontation a month earlier, and kicked her in the leg when she fell to the ground. And in a February argument over E.A.’s
Facebook use, mother removed a thin black cord connecting a DVD player to the
TV, held E.A. against the wall with her left hand, and whipped the cord across
her legs more than 15 times. The
officers observed “several crescent shaped bruises on [E.A.]’s right leg just
above the knee” and “several older straight line scars on both legs,” but
detected no signs of prior trauma on her face or cheeks.

E.A.
cried at the prospect of returning home because she was “extremely fearful” of
mother and further abuse. She did not,
however, believe her younger brothers, in ninth, seventh, and first grade, were
in danger. The officers telephoned
mother, who denied any abuse and noted CPS had closed earlier referrals. Mother described E.A. as “operat[ing] at a nine
to ten year old maturity level.” The
officers transported E.A. to Orangewood Children’s Home (Orangewood) at 3:00 a.m.

In
the days following intake at Orangewood, a doctor diagnosed E.A. as
undernourished. E.A. acknowledged a poor
diet she described as an “eating disorder” in which she did not eat at home
even when hungry because she was so “angry and upset about how . . .
mother behaved and ‘acted’ towards her.”
She similarly did not sleep well at home, often “wak[ing] up in the
middle of the night due to her own feelings of stress.” She also engaged in “cutting” by drawing
blood on her arms with a razor, which she hid from mother by wearing
long-sleeved shirts. Her health improved
dramatically at Orangewood; she put on weight and was sleeping through the
night, she described herself as “happy” and noted, “I have a sense of humor
now[,] it’s good to have friends and have people” around, whereas she had felt
“isolated” being homeschooled. Her new
therapist described her as “very insightful and very thoughtful,” with “good
verbiage” despite possible developmental delays. An earlier medical exam while in mother’s
care suggested E.A. suffered slight “autistic like behaviors, but her new
therapist observed no “autistic ‘symptom[o]logy.’”

Meanwhile,
the juvenile court sustained E.A.’s detention, and set a jurisdictional and
dispositional hearing for May 2012.

In
an interview with a social worker, mother denied “ever” hitting or punching
E.A., and denied striking her with TV cords or “any objects.” She acknowledged, however, “having behavioral
problems with the child . . . for a long time.” She tried seeking help early on, beginning
faith-based counseling in 2007 and completing a church program in 2009
entitled, “Changing Destructive Adolescent Behavior.” She sent E.A. to her maternal grandmother’s
for two months at the end of 2010, but E.A. engaged in the same behavior: she “ditche[d] school, smoke[d] marijuana,
and r[an] away.” Mother tried a county
intervention class called REACH in early 2011 but then, as E.A.’s school
truancy and runaway problems grew worse, mother appears to have dropped outside
help, except monthly half-hour telephone counseling for E.A. Mother pulled E.A. out of high school to
homeschool her using Internet classes. A
progress report for September through October 2011 showed E.A. failing all her
classes.

In
March 2012, E.A. was performing well in school at Orangewood, where she
preferred the “normal school setting” with the opportunity to interact with
teachers and other students, but mother demanded her removal, expressing
concern E.A. would lose the “positive connections” she had established through
the staff at the online school.
Disappointed and “[v]ery sad,” E.A. lamented that “‘[e]very time’ she
tried to do well, [mother] would do something to challenge that.” Mother eventually consented to E.A.
reenrolling provided Orangewood would develop an individual education plan for
E.A. in coordination with the online school’s specialist.

A
CAST (Child Abuse Services Team) doctor reviewed photographs of E.A. taken at
the time she was detained and observed “the marks on [her] hands, lower legs,
and thighs do not look like being hit with a cord” because “they are not
patterned and do not look like bruises,” though she noted “someone can be hit
with an object and a mark will not be left.”
The doctor also reported “the bruise on the child’s knee could possibly
be from being hit[,] but that . . . is not clear,” and discolorations
on E.A.’s “lower legs and thighs look more like marks that could be caused [by
her e]czema.” An Orange County Social
Services Agency (SSA) social worker therefore categorized E.A.’s allegation of
physical abuse as “inconclusive,” which the agency defined as “one . . .
determined not to be unfounded, but the finding[s] are inconclusive and there
is insufficient evidence to determine [physical] child abuse or neglect has
occurred.”

Nevertheless,
mother agreed, as she had in SSA interviews at the outset of the detention,
that she “currently does not want the child to return to her home” because she
could not “house the child . . . due to the ongoing behavioral
problems” and thought it “best to let go” because E.A. “does not want to come
back to her.” The social worker observed that although mother wanted E.A. “back
in her care” eventually, “[a]t this point, the mother believes that the child
being removed . . . may be positive for the child and herself and
hopes that future services will benefit their relationship.”

For
her part, E.A. told the social worker she had once “thought she could handle it
and stay [with mother] until she was eighteen,” but she concluded, “I cannot
put up with it anymore.” She did not
want to return home, but instead wanted to remain “in foster care until I am
18.” E.A. refused for weeks to consider
a visit with mother, but they met in early April when mother came to Orangewood
for E.A.’s individual education planning session. The social worker observed E.A. had “built up
[an] emotional wall to separate from” mother, and E.A. “did not make eye
contact and her shoulders seem[ed] to crouch slightly turned away from” mother.


At
the end of April, just before trial in early May, E.A. had an overnight visit
at her grandmother’s home, and E.A. intercepted two text messages from mother on
grandmother’s cell phone. The messages
stated mother did not want to see E.A. or for E.A. to be around her brothers,
but instead that E.A. should live with the grandmother. When E.A. returned to Orangewood, she showed
the staff photographs of her “making out” with a boy at the mall while
purportedly under grandmother’s supervision during the visit.

The
juvenile court heard testimony over several days in May. Mother acknowledged that E.A. was “at risk”
when she ran away from home, especially when she stayed with a boyfriend who
used drugs. Mother did not know E.A. cut
herself with a razorblade. She admitted
she used a belt to discipline E.A. twice when she was around 12 years old, but
denied she left marks or bruises or that she slapped, punched, kicked, pulled
hair, or disciplined E.A. by whipping her with TV cords. She admitted her relationship with E.A. was
“pretty bad,” but she believed it would improve now that E.A. had a new
boyfriend with whom mother would allow contact.
She wanted E.A. returned to her care, but she knew E.A. did not want to
see her and had refused to meet with her even in monitored visitation or
conjoint counseling. Mother felt
individual therapy sessions SSA had set up for her were all >she needed, which she agreed to continue
if the dependency petition were dismissed.
E.A., on the other hand, needed an array of services, but mother had not
yet located a children’s therapist for E.A., nor considered summer camp or
classes for her beginning in a month.
Mother admitted she had just submitted an application for a Big Sister
mentor for E.A., and she planned to send E.A. to a military-style, residential
academy beginning in July, at which point E.A. burst into tears and left the
courtroom.

After mother completed her testimony, E.A.
took the stand over the course of two days.
She explained she had laughed out loud in court in disbelief when mother
had testified she spanked E.A. in 2011 because E.A. had called her the “B
word.” E.A. had not called mother that
word, but she admitted she said she wished mother would die. E.A. testified “there was [>sic] so many time[s] that I
. . . got hit” that she could not remember them all or specific
dates, but she described the incidents in January and February 2012 when mother
had punched and whipped her. She also
described other incidents in July or August 2011 when mother punched her,
slapped her, pulled her hair, and hit her with the TV cords.

She
could not live with mother again. “I
have to be this tough person all the time.
And I can never finish — I can never just — I cannot be around my
mom. My mom — I have a lot of hurt and
anger towards her. I don’t think I can
live with her.” When E.A. did something
wrong, mother would swear at her and hit her, angering E.A. E.A. cut herself with a razor on two
occasions when she was enraged. She did
not sleep well at her mother’s because she was scared and did not feel safe
given the physical blows. E.A. hoped mother
had changed, “that she really cared about me,” but when she saw the text messages
on her grandmother’s phone , E.A. concluded, “[S]he’s lying . . .
that she cares about me. She just
doesn’t want to look back.”

After E.A. finished testifying on a Friday,
the juvenile court continued the hearing several days. E.A. ran away from Orangewood that afternoon,
but returned voluntarily on Monday.
According to mother, E.A. phoned the paternal aunt the Saturday and
Sunday she was gone, and admitted she “had gone to a party, gotten drunk, and
had sex with her ex-boyfriend.” E.A.
also later “AWOL’d” again for 45 minutes because she was upset with a peer
at Orangewood; she returned after she “just walked over to Carl’s Jr. in order
to calm down.” E.A.’s therapist notified
the social worker that E.A. was “beginning to feel cooped up” at Orangewood and
growing “very anxious to be placed” in a foster home. Fortunately, a potential foster parent
stepped forward to schedule a preplacement visit.

Meanwhile,
at the continued hearing, county counsel and minor’s counsel argued that E.A.
needed the juvenile court’s protection as a dependent child, which mother
opposed. The juvenile court sustained
dependency jurisdiction over E.A. Noting
E.A. “ran from the courtroom two or three times in tears,” the court observed
that while “[c]learly mother loves” E.A., “mother and minor’s relationship is
completely dysfunctional and they are estranged at this time.” The court
found “both mother[’s] and minor’s testimony to be credible at times
. . . and not credible at times . . . ,” including
“some denial and minimization by mother and exaggeration by minor.” The court
concluded , however, that “there was sufficient evidence about some of the face
slapping and about pulling — about the
hair pulling by mother on at least a couple of occasions,” and “[c]ertainly
these things are not appropriate parenting techniques.”

More
importantly, the juvenile court found mother was “aware that [E.A.] had
problems,” but after initial efforts failed, mother “did little to address the
ongoing escalating problems” as E.A. spiraled downward. Mother “didn’t seek out and obtain or even
attempt to obtain additional and necessary help for” E.A.; in particular, the
“30 minutes once-a-month-phone [counseling] session was insufficient to
help.” Mother’s inability to protect
E.A. was manifest in E.A.’s “dangerous risky behavior that resulted in physical
injury to herself.” Specifically, for
example, E.A. “ran to a place where she felt she had someone who cared for her
and who supported her. Unfortunately it
was to a person who took advantage of her and physically abused her.”

The
juvenile court concluded E.A. remained at risk in mother’s care because mother
“was not capable of recognizing the seriousness of the problems or doing
something about it or she simply couldn’t deal with it, didn’t want to deal
with it, or neglected to deal with it.”
Mother did “not appear to accept any responsibility for [E.A.]’s
behavior” and lacked “understanding and insight into the issues with [E.A.]
. . . and the work the two of them need to do or what is needed to
help.” For example, while the court
“commend[ed] mother for her efforts and her optimism that minor can start
counseling immediately and get into programs, none of these programs are in
place except perhaps for maybe starting the counseling. And even that is uncertain whether that could
actually start immediately.” The court
also noted that the text messages E.A. intercepted “of course hurt [E.A.], but
it also cause[d] the [c]ourt to doubt mother’s sincerity and credibility about
having [E.A.] return and being capable of adequately supervising or protecting
[E.A.]” In sum, the court
concluded: E.A. “is not ready and mother
is not ready for the minor to return home.”
Consequently, the juvenile court found continued placement out of mother’s
custody was necessary, and mother now appeals.

II

DISCUSSION

Mother
challenges the sufficiency of the evidence to support the juvenile court’s
decision finding E.A. fell within its protection as a dependent child. In the alternative, she argues the evidence
did not support removing E.A. from her custody; instead, “[t]he court could
have placed the minor in [mother]’s care under close supervision and with
conditions in place.” Ample evidence
supported the juvenile court’s finding and disposition.

The
juvenile court found E.A. to be a dependent child under both subdivisions (b)
and (g) of section 300.
Subdivision (b) provides for juvenile court dependency jurisdiction
when “[t]he child has suffered, or there is a substantial risk that the child
will suffer, serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise or protect
the child . . . .” The
juvenile court similarly may protect a child as a court dependent when he or she
“has been left without any provision for support” (§ 300, subd. (g)),
which does not require a finding of willful abandonment (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1128-1129
(D.M.)), but rather that “the parent
is unable to provide or arrange care for the child at the time of the
jurisdictional hearing” (In re J.O.
(2009) 178 Cal.App.4th 139, 153-154).


We
review the juvenile court’s jurisdictional findings for substantial
evidence. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) The burden rests on the appellant to
demonstrate the evidence does not support the juvenile court’s ruling. (In re
Megan S. (2002) 104 Cal.App.4th 247, 251.) As we have observed, “The substantial
evidence standard is a difficult hurdle for an appellant or writ
petitioner. ‘If there is any substantial
evidence, contradicted or uncontradicted, which will support the judgment, we
must affirm.’ [Citation.] A reviewing court is in no position to judge
the credibility of witnesses or reweigh the evidence, and therefore must
resolve all evidentiary conflicts in favor of the juvenile court’s
findings.” (D.M., supra,> 173 Cal.App.4th at p. 1128.)

Because
the juvenile court’s dependency jurisdiction may rest on a single ground (see
§ 300 [“Any child who comes within any
of the following descriptions is within the jurisdiction of the juvenile
court,” italics added]), subdivision (g) alone supports the juvenile court’s
ruling where the evidence shows want of an adequate caretaker. (D.M.,
supra, 173 Cal.App.4th at
pp. 1127-1128; see also In re
Jonathan B. (1992) 5 Cal.App.4th 873, 875 [“reviewing court may affirm
[dependency jurisdiction] if the evidence supports the decision on any one of
several grounds”].)

Here,
mother’s own text messages showed that on the eve of trial she did not want
E.A. to return home to her care.
Instead, she contemplated having E.A. reside with the maternal
grandmother because mother did not want to see E.A. or have her around her
brothers. We may assume mother had
E.A.’s best interests at heart as well as her own, given the emotional upheaval
and anger on both sides, but the fact remained that grandmother was an
unsuitable caretaker given her demonstrated past and present inability to
manage E.A.’s behavior. And with mother
effectively absenting herself via the text messages as a potential caretaker,
the juvenile court reasonably could conclude little had changed since E.A.’s
detention just two months earlier, when mother acknowledged their toxic
relationship drove E.A. away into at-risk behaviors and she therefore should
remain in the juvenile court’s care.

Mother
argues more “context” was needed to understand the meaning of the text
messages, and she asserts “what the text message[s] actually said” was
ambiguous as to whether mother “did not want [E.A.] or did not want to see
her.” But neither meaning supported
placing a child with a parent caretaker who either did not want her there or,
worse, did not want to see her at all.
In any event, mother had the opportunity to present additional context
for the juvenile court to consider, and failed to do so. Absent a parental or substitute caretaker,
substantial evidence supported the juvenile court’s dependency finding under
section 300, subdivision (g).

For
the sake of completeness, we note the evidence also supports jurisdiction under
section 300, subdivision (b). In
essence, mother challenges E.A.’s account of abuse and an abusive home
environment because E.A. “had clear motives to make up allegations against
appellant.” But we may not second-guess
the trier of fact’s credibility determinations.
(D.M., supra, 173 Cal.App.4th at p. 1128.) While the juvenile court did not include in
its sustained findings E.A.’s more serious allegations mother whipped her with
cords, the court’s findings mother slapped E.A. and pulled her hair supported
the conclusion this toxic home environment not only posed a direct risk of
physical harm to E.A., but also prompted a runaway lifestyle where she faced
serious risks, including drug abuse and physical abuse at the hands of
others. In contrast, the juvenile court
observed E.A.’s physical and mental health improved substantially outside
mother’s care. “She is eating better. She has actually gained some weight. She is sleeping well.” Having properly determined mother failed to
protect E.A. from harm (§ 300, subd. (b)), and that even if mother
had not removed herself from placement consideration in the text messages, she
was not a safe, viable option and had made no suitable alternative arrangements
(§ 300, subd. (g)), the juvenile court reasonably could decline to return
E.A. to mother’s custody (§ 361, subd. (c)).

III

DISPOSITION

The
juvenile court’s jurisdictional and dispositional orders are affirmed.







ARONSON,
ACTING P. J.



WE CONCUR:







IKOLA, J.







THOMPSON, J.