In Re. D.P- failure to state the facts supporting removal was not harmless error
Court of Appeal, Second District, Division 3, California.
IN RE D.P.,
Cal.App. 2 Dist.
Cal. Rptr.3d 313
This case covers a new issue of removing children without stating the facts supporting an emergency removal. The mother appeals on the grounds that the department removed the children without consideration of alternative means as under Welf & I C § 361 (e). She contends that if the trial court had appropriately applied the law then it would have discovered a less restrictive alternative than removal and that withholding the facts that lead to removal was not a harmless error. The court of appeal reversed the trial court’s order removing the children but did sustain the order ordering that the mother participate in services and have visits modified in needed.
The mother was suffering from mental health issues and medication noncompliance around the time the petition was filed. When approached by the social worker she demonstrated aggressive behaviour and was verbally abusive. The father opined that when she did not take her medication she was more aggressive and broke things in the house. The son endorsed the father’s statements and cited that she hit the father and tried to kill him. The mother addressed these concerns by stating that she was the victim of DV and that the father was the one to start the fights. Also the mother denied substance use, but did have alcohol use problems. The father soon sought a restraining order against the mother. In the same vein the mother sought one against the father. Because of the two orders, the department ordered that the child live with the paternal grandparents. ordered that a restraining order be filed and that the two parents live separately.
Soon after, the Department filed a nondetention dependency petition. The petition cited that both parents had a history of domestic violence that the minors at risk Welf & I C § 300, (a), (b)), there was moderate substance abuse, and that the mother had mental disorders that posed a serious risk of detriment to the minors. The juvenile court ordered the minor to stay in the father’s care. The court
The trial court offered the reasoning for removal:
“pursuant to Dependency Court Order 415, the terms of which are contained in the minute order” and “release[ ] [him to] home of father.”
“It is reasonable and necessary to remove the child from the mother, as such removal is defined in 45 CFR 1356.21(k)(1)(ii), and the care, custody, and control of the parent(s)/legal guardian(s) from whom the child is are [sic] being removed because there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being”
“and there are no reasonable means by which the child’s physical health can be protected, without removing the child from the home and the care, custody, and control of that or those parent(s)”
The court then ordered that the mother participate in alcohol treatment, a 12-step program, mental health services and medication compliance, a DV program, and counseling.
The mother filed a timely appeal. The following opinion was issued by the appellate court partially affirming the trial court’s orders and ordering reversal of the removal order.
Mother contends the juvenile court’s rubber stamp decision and reference to Dependency Court Order 415 violated Welf & I C § 361(e), which mandates that “[t]he court shall state the facts on which the decision to remove the minor is based.” The appellate court agreed with the mother and offered its reasoning.
The appellate court cites in re Ashly F. (2014) 225 Cal.App.4th 803, 810, “The requirement for a discussion by the child welfare agency of its reasonable efforts to prevent removal, and a statement by the court of the facts supporting removal, play important role” in preventing the department from unilaterally deciding to remove a child without providing sufficient cause.
Although the courts can use Dependency order 415, the appellate court reminded the court that such an order should not a replacement or rubber stamp in lieu of a statement of the facts supporting the court’s decision for removal. Dependency Court Order 415 serves as a legal basis for removal but there must be a statement of facts supporting removal.
In response to the department’s objections that even if the error was made, it passes the harmless error test as the mother’s history and noncompliance proved detriment to the child. The appellate court dissented providing the following reasoning:
“removing [the] offending parent [mother] . . . from the home” was sufficient to keep the minor safe.
The trial court relies on Michael S which stated that “even if removing a parent from the home [can be done it may not be] necessarily be sufficient to protect the child in all cases even if ordered.” Michael S., supra, 3 Cal.App.5th at p. 984.
The appellate court believes that the trial court misconstrued Michael S and stated that this case doe not rely on an abstract possibility of harm but has solid evidence that the child would benefit from placement with father.
The appellate court deemed that if the juvenile court had made a factual finding about the reasonable alternatives to removal, then it would have probably found an alternative result more favorable to the mother.
In regards to visitation and services the court found that the trial court did properly exercise its judgement. The appellate court reversed the decision removing the child and affirmed the judgement ordering the mother to comply with services.
IN RE D.P., a Person Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
J.P., Defendant and Appellant.
Filed 1/8/2020SynopsisBackground: Child dependency proceeding was commenced. Following combined jurisdiction and disposition hearing, the Superior Court, Los Angeles County, No. 18CCJP07818B, D. Brett Bianco, J., removed child from his mother's physical custody and returned him home to father's custody. Mother appealed.
Holdings: The Court of Appeal, Egerton, J., held that:
1 court's error in removing child from mother's custody without stating the facts supporting removal was not harmless;
2 court could restrict mother's visits with dependent child to monitored visits;
3 evidence was sufficient to support order that mother participate in a full drug and alcohol program; and
4 evidence was sufficient to support order requiring mother to participate in a domestic violence program.
Affirmed in part and reversed in part
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