In re M.S. CA4/2

Filed 10/29/26 In re M.S. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO In re M.S. et al., Persons Coming Under the Juvenile Court Law. E087225 RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, (Super.Ct.No. DPRI2500350) Plaintiff and Respondent, OPINION v. S.M., Defendant and Appellant. APPEAL from the Superior Court of Riverside County. Malvina Ovanezova, Temporary Judge. (Pursuant to Cal. Const., art. VI, §21.). Affirmed. 1  Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Jamila T. Purnell, Assistant County Counsel, and Catherine E. Rupp, Deputy County Counsel for Plaintiff and Respondent. The juvenile court sustained dependency allegations as to five children and ordered them removed from parental care. In this appeal, defendant and appellant S.M. (mother) argues (1) there was insufficient evidence to support removing the three youngest children from her care, and (2) the juvenile court failed to state the facts supporting its decision to remove the children as required by Welfare and Institutions 1 Code section 361. Plaintiff and respondent Riverside County Department of Public Social Services (the department) argues (1) the evidence supported removal, and (2) the court’s explanation of its removal order was deficient, but the error was harmless. We agree with the department and affirm. I. FACTS Five of mother’s children are at issue in this dependency, M.S. (a boy born 2008), Ma.S. (a girl born 2011), K.S. (a girl born 2013), J.S (a boy born 2021), and L.S. (a boy born 2022). Their older brother E.S. (born 2007) was already an adult at the beginning of 1 Undesignated statutory references are to the Welfare and Institutions Code. 2  2 this case. Their father, defendant D.S. (father), is not a party to this appeal. Mother and father have been married for about two decades. In April 2025, father was arrested for domestic violence and mother obtained an emergency protective order. Mother expressed “concerns for [father’s] behavior and potential substance use.” She saw him smoking marijuana in the garage two months before, and she had found “a white substance and paraphernalia, including two pipes,” in father’s vehicle. Law enforcement confiscated the items and determined the white substance was methamphetamine. Father told a social worker, however, that he never pushed or kicked mother, as she had alleged. Instead, he and mother argued after she backed her car up into him while he was holding L.S., and she then got out of the car and slammed the door on M.S.’s arm. He told her to “stop hurting the children,” and then she “tried to block his path” and “tried to pull [L.S.] from his arms.” She then tripped and fell. She “instructed [M.S.] to report [that father] pushed her so he would be arrested.” M.S. confirmed father’s account, telling a social worker mother “tripped over shoes, but out of fear of [mother], the children complied with her orders.” Despite the protective order, father said he never moved out, though mother “requested he park his car down the street.” 2 The dependency petitions allege mother is biological parent of all the children. This seems to be incorrect; the four older siblings were adopted by both parents, and then mother and father had two biological children together. For present purposes, it does not matter whether the children are biologically related to either parent. 3  The department’s investigation was ultimately closed as inconclusive because “the children did not disclose any direct physical harm.” Nevertheless, the department had “ongoing concerns regarding the parents’ volatile relationship and inconsistent engagement in supportive services.” Although mother was “cooperative at times” she “continued to allow contact between the children and [father], despite a restraining order.” In August 2025, the department initiated a new investigation, obtained custody warrants, and removed the children from parental care. Father had reported physical violence by mother. Father said mother was physically and verbally abusive toward all the children, and that she “is controlling and has continued to yell and scream at him daily.” According to him, mother throws objects at M.S. and “gets into physical altercations” with Ma.S. A social worker noted father’s belief that mother “has mental health issues,” but father also had disclosed he smoked marijuana before the social worker arrived, and it was “apparent” he was “under the influence” because he “had red eyes, and was paranoid.” Several of the children also reported physical abuse by mother. E.S. and M.S. attributed old scars on their arms to mother throwing items at them and said they did not feel safe in the home. M.S. said mother had slapped his face and punched him in the chest. M.S. also said he had been kicked out of the home several times, most recently in March 2024; he had put up a tent to sleep outside. Ma.S. reported “being in three physical altercations” with mother, including one when mother choked her. 4  Ma.S. told the social worker scars on her arms were from self-harm. She said both parents were aware of her self-harming. They had provided first-aid for her cuts, but they had not taken her for medical or mental health treatment. Ma.S. said that mother “favors [K.S.] more and constantly bribes her with things, so she takes her side,” and that “the parents constantly argue and put the children in the middle of their issues.” K.S.’s version of events was more favorable to mother. She described father as “the aggressor.” She said father “‘manipulates’” her siblings by making them believe mother “is always lying.” She said father had thrown items in the home, and she described an incident when father “bit her arm causing it to bruise.” She said Ma.S. had started self-harming after “the parents had an argument” and father “disclosed” that the four oldest siblings were adopted. K.S. “denied anyone getting hurt in the home,” but said “there were holes in the walls” that father had patched. She said she felt “‘a little bit’” safe in the home, but felt most safe when she stayed with her paternal grandmother “due to the parents arguing.” Mother denied ever throwing anything at the children, and she denied using physical discipline with them. She conceded she had been in physical altercations with Ma.S., but said it was because Ma.S. would “get upset and scream, cuss, and hit her.” She was aware of Ma.S. engaging in self-harm on two occasions, but said she had not taken her for medical treatment, and Ma.S. had refused counseling services. The department detained the children from parental care on August 8, 2025, and recommended that the children be removed from both parents. The original dependency 5 petition alleged all the children came within section 300, subdivision (b)(1) (failure to protect), based on domestic violence between the parents, including “volatile arguments and physical altercations, while in the presence of the children,” as well as father’s “unresolved substance abuse history, to include methamphetamine and marijuana, while supervising the children.” The petition also alleged under the same subdivision that mother inappropriately disciplines M.S. and Ma.S., that father knew of the inappropriate discipline and failed to intervene, and that neither parent had obtained the mental health evaluation and treatment Ma.S. needed for her self-harming behavior. The petition alleged that Ma.S. had suffered serious emotional damage under section 300, subdivision (c), based on her self-harming “due to the issues in the family home.” At the detention hearing on August 12, 2025, the juvenile court detained the children from mother, but not father. The court issued a temporary restraining order protecting father and the children from mother and limiting mother’s contact with the children to her twice-weekly supervised visits. On August 27, 2025, based on further interviews and investigation, the department obtained protective custody warrants to remove the children from father’s care, and two days later it filed an amended dependency petition. The department again recommended that the children be detained from father, too, based on further interviews and investigation. M.S. had described being handcuffed standing to his bunkbed by both parents, after which mother hit him with a bamboo stick and a belt, leaving welts on his bottom. M.S. had numerous scars on his body consistent with ongoing physical abuse. 6 He said he had been forced to sleep outside after arguments with mother, sometimes with only the clothing he had on, but sometimes in a tent. The longest he had slept outside was “six days straight,” and the last time was in March 2024. Father was aware M.S. had been forced to sleep outside after being kicked out by mother, sometimes for a night or two, the longest for a week. Father would sometimes “‘secretly’” let M.S. back in the house, once mother was asleep. M.S. also expanded on his description of mother’s behavior, saying she would “often throw items at him including chairs, books, or anything she was able to pick up.” Ma.S. described suffering verbal and physical abuse by mother. Ma.S. said mother was “‘quick to fight’” and that she “always wanted to ‘physically fight her.’” She said mother “would physically beat her by punching her in the chest, slapping her face, and pulling her hair.” Mother also would “follow her around the home making statements like ‘find a family who loves you.’” She called Ma.S. derogatory names, and accused her of self-harming “to get [father’s] attention.” Father was aware that mother was abusing Ma.S., including two incidents where she strangled her, and another where she handed Ma.S. a knife and told her “‘go ahead, kill yourself.’” Father said when he tried to intervene with mother, “it would always lead into an argument and him being forced to leave the home.” K.S. denied that M.S. or anyone else in the household ever had to sleep outside. She also denied the parents used physical discipline, and said she had not seen mother throwing items at her siblings. However, when asked if she “knew anything regarding 7 ‘handcuffs,’ she “covered her mouth, then stated ‘how do you know about that.’” K.S. also said that on the day the father revealed the older children were not his biological children, she had been so upset she threatened suicide, holding a knife to her throat. Mother responded by making her tea and watching her that night. The amended dependency petition added additional allegations about M.S., specifying that he had been forced to sleep outside “for a week without appropriate clothing except for what [he] was wearing,” and that the parents had “handcuffed [him] to his bunkbed while standing up to be spanked.” It specified that the parents had not only neglected to get mental health treatment for Ma.S.’s self-harm, but also failed to provide her medical care for her physical injuries. It added detail about the “issues in the family home” that had triggered Ma.S.’s self-harming behaviors, stating that mother had called her certain “derogatory names.” It also alleged that on August 19, 2025, father had tested 3 positive for marijuana, amphetamine, and methamphetamine. It included a new allegation that the parents had neglected K.S’s wellbeing by failing to get her appropriate mental health treatment after she “attempted to commit suicide by putting a knife to her throat.” At the September 2025 detention hearing on the amended dependency petition, the court detained the children from father, too, and they were placed out of the family home. 3 Mother, too, had tested positive for amphetamine/methamphetamine. Although that test result is noted in the detention report for the amended dependency petition, the department did not add any allegations about it. We have no explanation for that decision. 8  According to the September 2025 jurisdiction/disposition report, mother and father had separated, and mother told the social worker she had started the process of divorcing father. Mother said her “focus” was on the three younger children. She did not want M.S. back in her care, blaming his behavior for the other children being removed. She wanted Ma.S. to return to her care because she felt their relationship could be repaired. Ma.S., however, did not want to return to mother’s care, expressing at different times that she wanted to be in father’s care or to remain with her current caregiver. In September 2025, mother waived reunification services as to M.S. and Ma.S. Mother’s visits with K.S., L.S., and J.S. generally went well. K.S. wanted to return to mother’s care. The social worker was unable to interview J.S. or L.S., due to L.S.’s age and J.S.’s age and “limited verbal capacity.” Mother continued to deny throwing objects at the children or choking Ma.S. She said she last used physical discipline—spanking on the bottom with a belt—about four years ago. Mother conceded that she was aware of Ma.S.’s self-harming and “explained she should have provided Ma.S. with mental health services.” She denied knowing that K.S. had put a knife to her throat because she was not home during that incident. Mother also “explained she is a licensed counselor,” and said “she has taught parenting classes” so she believed she “had the tools to care for her children regarding their mental health concerns.” She said that the family had been “participating in family therapy.” Mother provided documents showing her participation in prejurisdiction services, including a domestic violence class, an anger management class, and a parenting class. 9 She also submitted a copy of her diploma for a bachelor’s degree in psychology and a transcript of her undergraduate courses. Mother was drug tested on September 25, 2025, and again on October 8, 2025, and she tested negative for all substances. In an October 2025 addendum report, the department said that on September 29, 2025, K.S.’s caregiver told the department K.S. was having unauthorized contact by text and phone with mother. In another conversation a few days later, the caregiver also expressed concern that K.S. was electronically sharing her location with mother, which would reveal the caregiver’s confidential address. When the social worker spoke to mother, she “explained she has rights as a parent and should be able to have phone contact with the children.” In a conversation several days later, mother said she “understands she is not supposed to have unauthorized contact with the children.” She denied speaking to K.S., saying she only responded with heart emojis to texts from K.S. On September 4, 2025, mother sought and obtained a no negative contact restraining order protecting herself from father. Nevertheless, on September 30, 2025, mother initiated negative contact with father, who texted the social worker: “‘911 she is breaking into the home’” The social worker told father to call the police. He sent back an image from a video camera in front of the house that “appeared to be [mother] holding a container with three police vehicles outside the home.” The addendum report also includes a September 18, 2025, letter from a “Counselor” and “Ministering Evangelist,” who confirmed that mother had been going to him for counseling for two 30-minute sessions per week since July 2025. He described 10 mother as “actively participating in counseling,” and said she “has shown significant progress in her counseling journey and has demonstrated a clear commitment to reunification with her children.” On October 14, 2025, the caregiver who supervised mother’s October 8 visits with K.S., J.S., and L.S. at a local park expressed concern that mother “was being ‘secretive’ with K.S.” by walking away so that the caregiver could not overhear what they were saying. At the jurisdiction and disposition hearing on October 20, 2025, the juvenile court found the children’s statements “more credible than the parents’ statements.” The court further commented: “The way to discipline your child when they’re misbehaving—and I get it. Children misbehave. It is not to handcuff them. It is not to throw things at them. It is not to leave them outside overnight. That’s not how you discipline a child. There are so many other things that can be done.” The court expressed surprise, given the results of the children’s forensic exams, that the department had not alleged severe abuse under section 300, subdivision (a). The court further commented on the parent’s “manipulation” of the children: “[W]hen I read that last addendum, I was so bothered. When I first had the parties, this family, come into this courtroom, I even indicated that both parents are manipulating the children. And that manipulation continues. Because I’ve read it in the reports. That’s what the parents are doing. And involving their children in their adult matters, that’s not to be done.” The court also admonished the parties to refrain from unauthorized contact between the children and the parents. 11  The court sustained most of the dependency allegations and adjudged the children 4 dependents of the court. It removed the children from both parents, and it ordered reunification services for father as to all the children, and only as to K.S., J.S., and L.S. for mother. II. DISCUSSION Mother argues there is insufficient evidence the three youngest children would be at risk of physical harm if they were returned to her care, and that there are reasonable means to protect them without removal, so we should reverse the order removing them as unsupported by substantial evidence. She also argues the court failed to state facts in support of removal, as required by section 361, subdivision (e). We decline to disturb the court’s ruling because the evidence amply supported removal and its inadequate statement of the facts underlying that decision was harmless error. A. Evidence Supporting Removal “‘“A dependency proceeding under section 300 is essentially a bifurcated proceeding.”’” (In re E.E. (2020) 49 Cal.App.5th 195, 205 (E.E.).) First, the court determines whether the child is subject to its jurisdiction—that is, whether the child falls within any of the descriptions set out in section 300. Section 300, subdivision (b)(1), authorizes a juvenile court to assert jurisdiction over a child if the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of [¶] [t]he 4 With the agreement of the department, the court struck the section 300, subdivision (b)(1) allegation regarding K.S. attempting to commit suicide by putting a knife to her throat. 12 failure or inability of the child’s parent . . . to adequately supervise or protect the child.” Mother does not dispute that the court properly assumed dependency jurisdiction over the children. If the court exercises jurisdiction over the child, it moves to the second part of the proceeding, deciding the appropriate disposition for the child and family. “Generally, the court chooses between allowing the child to remain in the home with protective services in place and removing the child from the home while the parent engages in services to facilitate reunification.” (E.E., supra, 49 Cal.App.5th at p. 205.) Under section 361, subdivision (c)(1), the juvenile court may remove a child from a custodial parent only if it finds, by clear and convincing evidence, “[t]here is or would be 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 removing the minor from the minor’s parent’s . . . physical custody.” (§ 361, subd. (c)(1).) In considering whether the department has shown that removal is justified, “the juvenile court may consider the parent’s past conduct and current circumstances, and the parent’s response to the conditions that gave rise to juvenile court intervention.” (In re D.B. (2018) 26 Cal.App.5th 320, 332.) “The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child.” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) 13  We review jurisdictional and dispositional findings and orders for substantial evidence, “‘contradicted or uncontradicted,’” bearing in mind the heightened burden of proof for a removal order. (In re R.T. (2017) 3 Cal.5th 622, 633.) “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 fact finder could have found it highly probable that the fact was true.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) In conducting this review, we “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.” (Id. at pp. 1011-1012.) Here, the evidence amply supports the juvenile court’s removal order. There is evidence, albeit disputed, that mother brutally and repeatedly abused M.S. and Ma.S. both physically and emotionally. Mother emphasizes the lack of evidence she physically abused the younger children, arguing they “had not previously been harmed in mother’s custody” and she was “working on her parenting skills and her relationship with father so there would be less relationship problems.” There is no requirement, however, that the younger children were previously harmed in mother’s care for removal to be justified. (In re Cole C., supra, 174 Cal.App.4th at p. 917.) And, it is hardly a stretch to infer that a child whose siblings have been so abused would themselves be at risk of substantial harm, which is enough to justify removal. A parent who has such poor judgment and 14 control of their own behavior as to punch, or choke, or throw things at, or handcuff to a bed and beat some of her children is reasonably viewed as posing a substantial risk of similar violence toward her other children. We are also not persuaded that the premise underlying mother’s arguments, that there is no evidence she abused or neglected the three younger children, is valid. To be sure, there is no evidence she intentionally threw anything at them or the like. But the evidence of mother manipulating K.S. into concealing the abuse of her older siblings is evidence of emotional abuse. Exposing children to violence against their siblings is abuse. And there is some evidence that, on at least one occasion, L.S. was in physical danger because of mother’s actions, when she backed the car into father while he held L.S. and then tried to wrestle him from father’s arms. Mother’s participation in parenting classes and other educational services was a positive step, of course. But its weight is reasonably discounted, not only because a few hours of classes does not balance out an ongoing pattern of violent abuse, but especially given mother’s claim to be a “licensed counselor” who previously taught parenting 5 classes. The problem here, in other words, was not a lack of knowledge. Mother’s continued denial that she physically abused any of the children, in the face of strong evidence to the contrary, is also reasonably viewed as cause for concern. 5 The record does not disclose what license, if any, mother holds, beyond her bachelor’s degree in psychology. 15  Mother proposes there were various means to protect the three younger children without removing them from her custody, such as additional programs and counseling in her case plan, orders conditioning continued custody on compliance with that plan, unannounced home inspections by social workers or the minors’ counsel, an order that father and mother not live together, and other in-home services. Mother has not articulated, however, why it was unreasonable for the juvenile court to view such measures as inadequate. Viewing the evidence in the deferential light required on appeal, we find the court’s decision eminently reasonable. We therefore have no appropriate basis to disturb the court’s finding that there were no reasonable alternatives to removal that would be effective to protect the children. In support of a different conclusion, mother cites In re Basilio T. (1992) 4 Cal.App.4th 155 (Basilio) as “instructive.” We disagree. In that case, the court found the evidence insufficient to support removal where there was some evidence of two prior incidents of violence between the parents, but there was little information about the nature of those incidents, no violence was directed toward the children, and no child was injured. (Id. at p. 171.) It is questionable whether Basilio would be decided the same way today, given more recent authority holding that unaddressed domestic violence between parents is dangerous to a child’s safety no matter whether the child was actually injured by or even present for the domestic violence between the parents. (See, e.g., In re V.L. (2020) 54 Cal.App.5th 147, 156 [cycle of violence between parents poses “‘substantial risk of encountering the violence and suffering serious physical harm or 16 illness from it’”]; In re Heather A. (1996) 52 Cal.App.4th 183, 194 [similar].) Regardless, the facts here are different. Unlike the parents in Basilio, mother physically abused some of her children. Also, while telling a child to kill herself may be emotional, rather than physical abuse, there is no question it poses a substantial risk to the child’s physical health, particularly if the parent also hands the child a knife. That not just Ma.S., but also K.S., showed signs of suicidal ideation only further demonstrates that it is not necessarily only the child who is the focus of abuse in the household who is put at substantial risk. We find nothing instructive about Basilio here. B. Statement of Facts in Support of Removal Citing section 361, subdivision (c)(1), the juvenile court found there was clear and convincing evidence supporting removal from both parents. It did not, however, make any statement of the underlying facts as it was making that finding. The court is required to “state the facts on which the decision to remove the minor is based.” (Id., subd. (e).) It was error for the juvenile court to fail to do so. Nevertheless, we disagree with mother that this failure to state specific factual findings in support of its removal order requires reversal. “‘[C]ases involving a court’s obligation to make findings regarding a minor’s change of custody or commitment have held the failure to do so will be deemed harmless where “it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.”’” (In re L.O. (2021) 67 Cal.App.5th 227, 247.) Specifically, we ask whether it is reasonably probable that the juvenile court would not have removed the dependent minor “had the 17 juvenile court reflected upon and stated the facts as required under section 361.” (In re D.P. (2020) 44 Cal.App.5th 1058, 1069.) We conclude the juvenile court’s failure to state facts in support of removal was harmless. Notably, before making its jurisdictional findings and disposition order, the juvenile court commented on its view of the evidence and the parties’ arguments. Thus, this is not a case where the juvenile court was silent and merely adopted the department’s recommendations in a pro forma manner. Rather, the juvenile court’s colloquy demonstrates it fully considered the evidence and arguments advanced by all parties before reaching its decisions, including its decision about removal. Moreover, the juvenile court’s comments on the evidence demonstrate there is no reasonable probability it would have reached a different decision about removal had it further reflected upon and stated the facts as required under section 361. The court viewed the abuse suffered by M.S. and Ma.S. as even more serious than the department chose to allege. The court was disinclined to increase mother’s supervised visitation, let alone return the children to her care. It is exceedingly unlikely that, if we were to remand the matter for further consideration, the court would reach a different conclusion regarding removal. This falls well short of the reasonable probability required for mother to demonstrate prejudice from the court’s procedural error. 18  III. DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL _____________________________________________________________________________________________________________________________ _________________________________________ Acting P. J. We concur: MENETREZ _____________________________________________________________________________________________________________________________ _________________________________________ J. LEE _____________________________________________________________________________________________________________________________ _________________________________________ J. 19