1

Filed 8/13/20 In re S.S. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re S.S., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU,

Plaintiff and Respondent,

v. A.S., Defendant and Appellant. A158227
(Contra Costa County Super. Ct. No. J19

- 00151)

A.S. (Mother), mother of seven

- year
- old S.S., appeals from the juvenile court’s dispositional order removing S.S. from her care. 1 Contra Costa County Children and Family Services Bureau (the Bureau) has moved to
dismiss the appeal as moot since S.S. has been returned to Mother’s care or, in the alternative, moves to dismiss the appeal on its merits

. We deny the Bureau’s motion to dismiss and affirm the dispositional order.

1 S.S.’s fa ther, B.P. (Father) , is not a party to this appeal.2 F ACTUAL AND P ROCEDURAL B ACKGROUND On February 1 3, 2019, 2 the Bureau filed a depe ndency petition alleging S.S. wa s at substantial risk of harm in Mother’s care based on Mo ther ’s history of substance abuse, mental health issues , and domestic violence and assaultive behavior in S.S.’s presence ; in addition, Mother had a recent arrest for assault while under the influence. A February 14 detention/ j u risdiction report stated Mother was arrested in October 2018 for domestic battery after she punched and scratched her boyfriend and gra bbed his neck

. On February 2 , Mother’s mother (Grandmother) c alled the police to report that Mother was fighting with someone in their apartment parking lot. When police arrived , Mother was yelling and crying hysterically while holding S.S. , who was also crying

. Mother refused th e officer’s request to g et up and w hispered something in S.S.’s ear, causing her to cry again. When Mother finally stood up, she
stumbled. Her eyes were bloods hot and watery and she smelled of alcohol. C oncerned for S.S.’s safety, the officers asked Mother to put S.S. down and
leave her with Grandmother , but Mother refused and a struggle ensued , with
Mother usi ng S.S. “as a human shield” as officers tried to handcuff her.
Mother ultimately handed S.S. to Grandmother and was arrested

. Mother admitted she took S.S. with her to a p arty th at evening and
drank alcohol. After returning home , and in S.S.’s presence, Mother and a neighbor got into an argument , the neighbor took Mother’s phone, and the two “hit each other several times.” Grandmother was concerned for S.S.’s safety because Mother place d S.S. in dan gerous situations by taking her to parties, getting “extremely intoxicated, ” meeting “ numerous men , ” and leaving S.S. with strangers.

2 Unless otherwise noted, all further dates are in 2019.3

Later, while Mother was in custody, she tried to strangle herself with
her hands. An officer heard Mot her struggling to breathe and yelled at her to stop. Mother did not stop, and shoved her hand down her mout h, scre amed at the officer, made irrational statements, and said she “wanted to die.” Mother was transported to the hospital for a psychiatric evaluation under Welfare and Institutions Code section 5150 (5150 hold)

. The next day, Mother returned to the police department to report she might have been raped at the party. She re alized after returning home from the hospital that she was not wearing underwear and could “ ‘feel ’ that she
had sexual intercourse ” but knew she had not given c onsent

. She did not
remember much about the party, other than that she “blacked out” and there was a “ ‘ scruffy/disgusting’ guy” and a “ ‘ circle dance

. ’ ” Officers interviewed Y.Y., who drove Mother and S.S. home from the party after she saw Mother drinking a lot and talking to and dancing wi th married men. Y.Y. believed
Mother developed a “drinking problem” after breaking up with her boyfriend. S ocial workers met with Mother on February 4 to discuss the recent

events as well as Mother’s child welfare history , whi ch included three unfounded referral s for general neglect and physical abuse of S.S. between
2015 and 2017. Mother said she went to the party with S.S. because her friend, who knew Mother was “ ‘depressed’ ” about a relations hip that ended
in December 201 8, encouraged her to go out. Almost everyone at the party

was drunk. Mother drank and “blacked out” because she took Percocet for the first time that morning and mixed it with alcohol. When asked wh ether she was raped , Mother said it was the police’s job to “figure [ it ] out.” She denied trying to strangle herself w hile in custody and claimed she was placed on a 5150 hold for refusing to take her shoes and jewelry off and asking to speak to a supervisor. She admitted she was previousl y placed on a 51504

hold when her abusive ex
- boyfriend posted nude pictures of her online , which
made her “want[] to die.”
Grandmother told social workers that she cared for S.S. for three years
while Mother lived out of state. Mother ret urned two year s ago and was

“ ‘ violent ,’ ” did not consistently take S.S. to school, fed her mostly snacks,
and t reated her “ so bad” by getting “ ‘ so crazy’ ” screaming at S.S. and hitting
her. A neighbor saw Mother smash S.S.’s head on the ground with her foot , and G randmother had seen bruises and marks on S.S. Mother also had her

ex
- boyfriend take nude photographs of her in S.S.’s presence. Grandmother said, “ ‘ I am just concerned about the baby, [Mother] is mental. If she does not do anything for her mental healt h the baby is going to di e. ’ ” Social
workers also spoke briefly to S.S., who said she saw Mother fighting “ ‘ in the

streets. ’ ” When asked what she and Mother did for fun, S.S. responded,

“ ‘nothing.’ ” At a Family Team meeting, Mother told social workers that she stopped taking her antidepressant medication b ecause it made her sleepy but she was ready to seek mental health treatment. Social workers observed the

“ dysfunctional dynamics ” between Mother and Grandmother, as they
fr equently interrupted each other and argued. The Bureau recommended detaining S.S. as Mother had mental health issues, did not take responsibility for her actions, and did not believe drinking was problematic

. While Grandmother wa s sometimes “a protective factor,” she and Mother had an unhealthy relationship and argue d about inappropriate topics in front of S.S.
At a February 14 detention hearing, the juvenile court ordered S.S. detained from Mother a nd ordered visitation

. Thereafter, the court took jurisdiction based on language agreed to by Mother at mediation. In an April5

11 dispositional report, the B ureau recommended that S.S. be removed from Mother’s care , with reunification service s, as Mother’s mental health issues, alcohol use, involvement in unhealthy and violent relationships, and inability to prioritize S.S.’s safety plac ed S.S. at risk of harm. Mother had drug tested only three times out of eight and had one positive test for codeine , for which she had a prescription. She claimed she a ttended Alcoholics Anonymous (AA) meetings but provided no documentation and did not sign a release for the
Bureau

. Mother said she felt she was being punished for one incident that occurred after she took a pain pill

. Visits between Mother and S.S. w ere overall appropriate , but there

were s ome concerns. During one visit, S.S. told Mother that she is “mean” and hits S.S. “ ‘like every day.’ ” S.S. cried inconsolably for a while, and when Mother asked her why she was crying, S.S. responded, “ ‘because you are mean to me.’ ” Mother called the social worke r on the day of the next visit to cancel, stating she had gotten into an argument with Grandmother and had “a lot of things to sort out.” At an April 11 dispositional hearing, Father made his first appearance and was referred to an attorney. Mother asked to repr esent herself ( People v.
Marsden (1970 ) 2 Cal.3d 118 ), and the juvenile c ourt denied her reque st. Mother ’s counsel asked for expanded visits, stating Mother was participating
in services and an alcohol asses sment had “recommended no treatment.” The court questioned Mother’s judgment and had “real concerns about what [S.S.] was exposed to on [Mother’s] watch , ” but increased visits from once to twice per week, wit h discretion to the Bureau to make them unsupervised.6

In a May 9 memo, a social worker summarized contacts had with
Father. 3 Mother had started a ttending parenting and anger management class es but had o nly drug tested once out of eight times. In addition, she questioned S.S. about her visit with Father , asked whether she felt safe with “ ‘that man, ’ ” and said S.S. should not be forced to have contact with “ ‘that sperm donor.’ ” The visitation supervi sor reminded Mother not to speak negatively about Father and told her to wait to discuss Father’s visits, but Mother pressed on until the visitation supervisor threatened to cancel the
visit. The Bureau was concerned that Mother, who became aware that
Fat her might seek custody and support, told S.S.’s therapist that she (Mothe r) has dual citizenship and was going to “ ‘kidnap’ ” S.S. and leave the country

. According to a June 20 memo, Mother said she was going to obtain a restraining order against Fathe r for “harassing her.” Father, however, was
adamant that he had not contacted Mother for several weeks since the social
worker had directe d him not to . Mother did not file a request for a restraining order. The following week, Mother said she had an “emergency”; she was “ ‘done with her reunification ’ ” and ready to “sign away her rights to her child” because the case plan required her to do more than Father, which

was unfair.
At a June 20 and 24 contested dispositional hearing , Mother testified
she moved to a safe community and was working full time, participat ed in parenting and anger management classes, therapy, and AA, and was

3 Father was working two jobs , had two older children, good family support, and no criminal background. He felt S.S. would be safe and happy living with him. Father’s first visit with S.S. went well, with S .S. jumping into Father’s arms and the two playing well together and showing affection towards each other throughout the visit.7

repairing her relat ionship with Grandmother

. She completed two alcohol

assessments and no further treatment was recommended. Regarding her

menta l health, Mother believed her stress was coming from lack of sleep ; she was now taking sleeping pills and was feeling better. Sh e believed the most

re cent 5150 hold h elped her understand that she was having a reacti on to her medication; she noted the doctor released her from the hold after just
35 minutes.
Mother testified about t he educational services she obtained for S.S.
and said she wished to remain involved in the educational and medical
decision

- making process. She expressed concern about S.S.’s pr ivacy rights, stating she saw Facebook post s in which the foster parents posted S.S.’s pictures and name and identified her as a foster child. She was also
concerned whether S.S. was safe in foster care. Mother acknowledged she has dual citizenship but denied saying she was going to kidnap S.S. On cross

- examination, Mother admitted an anger management problem and that she punched her neighbor in the face in S.S.’s presence.
She was previously in an abusive relationship and she and S.S. moved in
with the man even though he was violent with her. She denied abusing
alcohol and said s he behaved the way she did on February 2 because she mixed pain medication with “about” four shots of tequila and one beer. When confronted with her failure to drug test , Mother said she did not know she
had to t est and was also unable to test due to long work hours

. She received testing instructions, forms, and testing site information but, “I just maybe
assumed that since all my tests have come out negative, that they are not a priority.” When minor’s counsel asked Mother whether her babysitter’s god son drove her home from the party, Mother responded, “Her godson is four years8

old. I would like to know how a 4

- year
- old can drive a car.” She denied ever saying she “blacked out” and refused to answ er questions about her rape allegations based on “the Fifth [Amendment].” She did not know why she

was arrested that night : “I actually never really asked

. I was not charged, so I honestly don’ t care.” She denied trying to harm herself while in custody and said she put her arms around her neck “to remove the extremel y heavy shirt [she] was wearing.” She did not stop when the officer told her to
because t he shirt was “extremely tight and uncomfortable.” “Most women’s clothing becomes uncomfortable after a[] while.” When a sked about her shoving her hand down her throat, Mot her smiled , referred to counsel’s questions as “ridiculous,” and said she did it to induce throwing up. She
denied saying she wanted to die, and added, “People choose to write whatever they want in their repo rts.”
Mother had taken four anger management classes as of the date of the hearing and believed she was now able to control her anger

. On further

cross
- examination by the Bureau’s attorney, she admitted the police also
came to her home on March 4, whe n she and Grandmother got into a fight

. She denied throwing a bottle of lotion at Grandmother and said she did not know why Grandmother’s boyfriend

— who was present during the argument

— would say she did

. Mother and Grandmother were in therapy to
address t heir issues. Mother then asked the Bureau’s attorney, “Would you like to bring any more of my private matters up?” Counsel asked, “Do you understand that your reactions and your behaviors are why we’re here today?” Mother responded, “Yes. Do you unders tand that people have lives, and that they are private [?] I want to know how this is relevant to my child’s care.” “My child was not present at that time.” “My child has not been present since February 13th.”9

The Bureau’s attorney asked Mother about Gr andmother’s prior statement to the Bureau that Mother left S.S. with Grandmother for three

yea rs. Mother said this was not true as she was gone for only two months when she went to Mardi Gras to work as a stripper. Mother noted that
stri p ping is legal, a nd said she used to be an “extremely happy 18

- year
- old” working as a stripper in a strip club in San Francisco at the time she met Father, who was a manager at the club. During closing arguments, Mother’s counsel argued Mother took responsibility for her actions “very early on in these proceedings” and had made significant progress in her case plan. Counsel argued it would be safe for S.S. to return to Mother’s care, as Mother was “ready, willing, and able ” to complete all recommended services. The Bureau’s attorney argued it was “clear” during Mother’s testimony that she was saying “what she wants us to hear,” which is “not necessarily the t ruth,” nor “complete, ” and that she has “a lot more work to do” before S.S. can be safely placed in her care. Counsel pointed to inconsistences in Mother’s testimony , a sserted Mother often “challenges” or “deflect[s] , ” and noted she has h ad “outbursts here in court,” “poor impulse control,” and “underlying ang er issues.” Minor’s couns el agreed and added that Mother minimized her actions, was “constantly” evasive,” and “had absolutely no credibility in anything she said.” The “belligerence” in Mother’s “facial expressions [as she answered] questions ,”
her “smu g self

- righteous air , ” and “gloating type of facial response” showed

s he had “absolutely no insight as to what’s going on.” The juvenile court stated Mother’s behavio r on the stand was “astonishing ” ; she was “belligerent,” “inconsistent,” “minimized,” “a rgued,” “demonstrated that she has little impulse control,” “[v]ery little ability to tell a consistent story, and therefore, very little credibility in the end.” A number10

of things such as her t estimony regarding drug tests “were clearly not true
bec ause she contradicted [herself]. ” The court had no doubt that Mother loves S.S., but stated she lacks perspective and insight “as to what a horrific event this was for [S.S.].” As the court stated its findings, Mother interrupted repeatedly, which the court referred to as examples of “a lack of impulse control.” “I’m trying to make a ruling, I’m trying to make findings, and [Mother] is yelling at me about what [the] facts are, and talking about what witnesses she wants to bring in, including her daughter.” The court was “very, very concerned” for the child and also concerned for Mother, who “has some real anger management issues. I think [Mother] has some mental health issues. I think she . . . probably has some substance abuse issues.”
Mother continued t o interrupt until the court ultimately stated it was finding, “by clear and convincing evidence that having [S.S.] in her mother’s care at this time would . . . expose her to a real risk of physical or emotional harm, and there’s no reason or means by which her physical health can be protected without removing her from her mother’s physical custody.” Mother appeals from the dispositional order removing S.S. from her care.
D ISCUSSION I . Motion to Dismiss
The Bureau has moved to dismiss Mother’s appe al based on mootness as S.S. has been returned to Mother’s care. The Bureau asks that we take judicial notice of a June 4, 2020 stipulation and order returning S.S. to Mother’s care with family maintenance services. Mother argues the issues

are not moot and , even if they are, this court should exercise its inherent authority to decide the merits of the controversy. We grant the request for judicial notice , deny the motion to dismiss, and affirm the dispositional order
on the merits.11

“As a general rule, ‘an appeal presenting only abstract or academic questions is subject to dismissal as moot.’ [Citation.]” ( In re Jody R. (1990) 218 Cal.App.3d 1615, 1621.) However, even in circumstances where effective

r elief can no longer be provided because the paren t has since been awarded custody, courts have recognized they retain the inherent discretion to resolve the issue “ where ‘ there is a likelihood of recurrence of the controversy between the same parties or others.’ ” ( In re N.S. (2016) 245 Cal.App.4th 53,
59 .) For example, appellate courts have declined to dismiss appeals as moot where dependency jurisdiction has ended but the juvenile court’s orders continue to affect the parents’ custody and visitation rights. ( E.g., In re Joshua A. (1994) 24 Cal.App.4 th 15 44 , 1546

- 1547 [juvenile court’s adverse ruling s continued to affect the parent ’s custody and visitation rights]; In re
J.K. (2009) 174 Cal.App.4 th 1426, 1431

- 1432 [ same ].)
In re Michael D. (1996) 51 Cal.App.4th 1074 is instructive. There, while the mother’s appeal from a removal order was pending, the juvenile court issued an order permitting the child to continue residing with her. ( I d

. at p. 1081, fn. 2.) The Court of Appeal declined to dismiss the appeal as

moot , stating the juvenile court “continues to retain jurisdiction of the matter. Con sequently, resolution of the issue raised in this appeal is particularly appropriate because it is likely to affect the future rights of the parties. ” ( Ibid. ) Similarly, al though the recent order returns S.S. to Mother’s care, the juvenile court continues to have jurisdiction over the matter. S.S. is still a dependent child, Mother is receiving family maintenance services under the supervision of the Bureau, and there is an upcoming review hearing. The
order includes visitation orders for Father, who is also a party to the action, and there is some indication in the record that he wishes to seek further12

visitation and/or custody of S.S. Because the issue s raised in this ap peal have a continuing effect on Mother in the dependency proceedings and on her custody and visitation rights, we decline to dismiss the appeal as moot. II. Substantial Evidence The appeal fails on the merits. When a minor has been adjudged a dependen t child of the court under Welfare and Institutions Code section 300 , 4 the juvenile court may limit the control to be exercised over the dependent child by the parent or guardian. (§ 361, subd. a) .) A dependent child may not be taken from the physical

cus tody of his parent unless the juvenile court finds by clear and convincing evidence that there is a “substantial danger to the physical health, safety, protection, or physical or emotional well

- being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected” without removal. (§ 361, subd . (c)(1).)

“ ‘ “ The parent need not be dangerous, and the minor need not have been actually harmed before removal is appropriate. The focu s of the statute is on averting harm to the child. ” ’ [Citation.] The court may consider a parent’s past conduct as well as present circumstances.” ( In re John M. (2012)
212 Cal.App.4th 1117, 1126.) The California Supreme Court recently clarified the s tandard for appellate courts to use when reviewing findings

— such as the removal

- related findings in this case

— that must be proved by clear and convincing evidence.
In such case s , “the question before the appellate court is whether the record
as a whole co ntains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting its

4 All further undesignated statutory references are to the Welfare and Institutions Code.13

review, the court must view the record in the light most favorable to the prevailing party below and give appropri ate 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. (Jul. 27, 2020)

--- P.3d

---- 2020 WL 4280960, at

p. *1 2.) The appellant has th e burden of showing there is insufficient evidence to support the juvenile court’s findings or orders. ( In re Geoffrey G. (1979) 98 Cal.App. 3d 412, 420.)
We conclude th e record contains su fficient evidence from which the juvenile court could have found it highly probable that there was “substantial danger to [S.S.’s] physical health, safety, protection, or physical or emotional
well

- being . . . if [she] were returned” to Mother’s care, and that the re were “no reasonable means” by which she could be protected without removal. (§ 361, subd. (c)(1).) At the time of the dispositional hearings, Mother had been pla ced on two 5150 holds and arrested twice for engaging in violent behavior, including at le ast once in S.S.’s presence. She was recently in an abusive relationship, and despite the fact that the man had been violent with her, she and S.S. had moved in with him. Throughout the proceedings,
Moth e r minimized the February 2 incident, stating, amon g other things, that she was being punished for one event that happened af ter she took pain medication. She denied trying to strangle herself while in custody, claiming she was simply trying to take an uncomfortable shirt off , and asserted she

was unjustly arrested and placed on a 5150 hold

. Further, even after S.S. was detained, Mother was invo lved in another fight

— with Grandmother

— that required police intervention. Moreover, Mother’s testimony, as well as
her attitude while on the stand

— of which the Bureau’s attorney, minor’s counsel, and the juvenile court all took note

— showed she did not appreciate14

the gravity of the situation or the effect her behavior had on her child. ( In re Margarita D. (1999) 72 Cal.App.4th 1288, 1295

- 1296 [the trial cour t, “which had the opportunity to observe the witness testify , is better suited than a reviewing court to make such determinations of fact].)
While Mother was actively engaged in services , she had been participating for only a month or two at the time of d isposition and had not obtained certificates of completion. She asserted the anger management classes were helping her control her anger, but she continued to have outbursts in court and was unable to stop interrupting counsel or the court after multiple warnings. Mother also asserts she had positive and loving visits with S.S ., but the re cord shows otherwise , e.g., Mother questioning S.S.
about her visits with Father and continuing to speak negatively about him after being in structed to stop, and S.S. cr ying i nconsolably and saying that Mother is mean to her and hits her everyday. Reviewing the evidence in the light most favorable to the juvenile court’s decision, we conclude there was substantial evidence to support the
removal order.
D ISPOSITION The B ureau’s request for judicial notice is granted. The Bureau’s motion to dismiss is denied. The juvenile court’s June 24, 2019 dispositional order removing S.S. from Mother’s care is affirmed.15 _________________________ Petrou, J.

WE CONCUR:

_________________________ Siggins, P.J.

_________________________ Fujisaki, J.

A158227