Opinion
F081673
03-09-2021
In re L.H., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. LLOYD H., Defendant and Appellant.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CEJ300165-3)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Brian M. Arax, Judge. Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and De Santos, J.
-ooOoo-
In this dependency case, Lloyd H. (father) appeals the juvenile court's dispositional order removing his newborn son, L.H., from his physical custody (Welf. & Inst. Code, § 361). Father contends the juvenile court erred by denying his request for a continuance made during closing argument of the combined jurisdictional/dispositional hearing to allow the department to assess his residence, which he had obtained four days prior to the hearing. Finding no error, we affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The family initially came to the attention of the Fresno County Department of Social Services (department) in December 2019, because mother, U.B., had given birth to L.H., and it was discovered she had received little to no prenatal care, had a history of unresolved substance abuse and untreated mental health issues, and had lost custody of two of her children in previous dependency cases due to a failure to protect them. Mother had been diagnosed with Schizoaffective Disorder with postpartum exacerbation, psychotic episode; developmental delay; and polysubstance abuse. Mother had been placed on a section 5150 hold in June 2018, when she also presented with a significant head injury allegedly due to domestic violence by father. Mother also had a history with domestic violence relationships.
A social worker reported to the hospital shortly after mother gave birth on December 25, 2019. A nurse reported mother's toxicology screens were negative and both parents appeared to be appropriate with L.H. When the social worker attempted to speak with the parents, mother was not "initially welcoming" to him, but father told her to be respectful and answer questions. Mother indicated she did not like or trust child protective services (CPS). The social worker told the parents that if the department observed no safety concerns, L.H. would not be removed. The parents denied domestic violence issues, and mother stated she had no mental health issues, had never been hospitalized for mental health issues, and had not been involved with any police incidents. Mother reported attending "at least ten to fifteen" prenatal appointments but did not remember her doctor's name. The parents reported having supplies for L.H. and familial support. The parents gave the social worker their address and stated they lived with the maternal grandmother.
Over the next couple of days, social workers attempted to gather information from mother, but she did not wish to speak with them. The social workers were unable to contact father by phone because the number they had for him was not a working number. Mother refused to answer the social workers questions about father's contact information. When the social workers went to the parents' residence in an attempt to speak to father, a male who lived at the residence stated father lived there but was not home. The man who answered the door stated father rented a room at the residence, but the man did not know anyone else who lived there. Based on mother's unresolved issues and refusal to speak to the department, and the department's inability to get a hold of father for assessment, the department filed an application for a protective custody warrant, which a judge issued.
On December 27, 2019, the social worker went to the hospital to serve the protective custody warrant. Father asked why no one attempted to contact him. When the social worker told father of the attempts made to contact him to no avail, father called the social worker a liar and said that they had no right to remove L.H. The parents continued to argue with the social worker, and mother attempted to push the social worker. A woman who was present with the parents intervened and restrained mother telling the social worker mother would "F[-] you up!" The social worker presented father with the protective custody warrant, and father again stated that the social worker was lying. L.H. was placed with the parents of his biological half siblings.
On December 30, 2019, social workers contacted the parents at their home. Father advised he and mother had been in a relationship for four years and had lived at their current residence for eight months. During the social worker's visit, mother became upset and started to yell at the social worker. Mother then stood up over the social worker, causing the social worker to fear for her safety and begin to leave the residence. When the social worker stood up, mother raised her arms as if she were going to hit the social worker, and father held her back. As the social worker walked toward the door, mother pushed past father and followed the social worker. The social worker informed mother if she followed her out to her car, she would call law enforcement. The social worker was unable to view L.H.'s baby supplies due to the incident but reported the portion of the house she saw was free of health or safety concerns.
Father attended a "Child and Family Team" (CFT) safety meeting at the department that afternoon. Prior to the meeting, father reported to the social worker that mother had a mental health diagnosis, but he did not know what it was. He knew she had been hospitalized in the psychiatric ward about 30 times total but only twice since they had been in a relationship. Father stated he generally keeps her on her medication, which is 400 milligrams of Seroquel, but that the doctor advised mother not to take the medication during her pregnancy. Father had planned to take mother to the county mental health office to get her back on her medication. Father reported he and mother rent a room from the owner of the house and have two roommates, a male named Tony, and maternal grandmother.
At the CFT meeting, father stated he was aware mother's mental health was not being treated and that she had children removed from her in the past. He stated the domestic violence report against him, however, was not true. Father denied that mother was physically aggressive with the social worker when they delivered the protective custody warrant. When the social worker brought up mother being aggressive at their home that morning, he nodded his head and explained when she is on her medication, she is a different person. Father reported he was nonoffending and safe, but the social worker stated there was a concern because he and mother lived together. It was decided at the meeting that L.H. should remain in out-of-home placement. L.H. was not released to father because he resided with mother.
On December 31, 2019, the department filed a first amended dependency petition alleging L.H. came within the juvenile court's jurisdiction under section 300, subdivision (b)(1) (failure to protect) and subdivision (j) (abuse of siblings). It was alleged that mother's unresolved substance abuse, untreated mental health issues, and previous abuse of L.H.'s siblings, put L.H. at substantial risk of harm. As to father, it was alleged that father knew or should have known mother had a mental illness because they reside together. It was alleged that mother requires medication to stabilize her condition and had not been taking it, which had resulted in violent outbursts, and father failed to protect L.H. from mother putting him at risk of abuse and/or neglect.
On January 2, 2020, the juvenile court ordered L.H. detained from the parents. Mother was not present at the detention hearing.
In the department's combined jurisdiction/disposition report dated February 21, 2020, the social worker recommended the allegations in the first amended petition be found true and that L.H. be adjudged a dependent of the court. Reunification services were recommended for father, but it was recommended that mother be denied reunification services because several statutory bypass provisions applied. The report indicated on February 10, 2020, father reported that mother was residing with the maternal grandmother, but they still see each other. Father was consistent with visits with L.H. and maintained contact with the department. The department was unable to contact mother. Mother visited L.H. with father one time in February 2020. It was reported during that visit mother thought L.H. lived at the visitation center, asked the visitation worker how old L.H. was, and placed him on the couch and did not respond to him crying. Father appeared "jumpy, agitated, and fidgety" during the visit with mother. Visits with father otherwise went well. The department recommended L.H. not be returned to father's care because he had not ameliorated the reasons that led to L.H.'s removal; the department was concerned father would leave L.H. in mother's care if L.H. were returned to father. Father did not attend a scheduled substance abuse assessment in January but participated in some random drug testing. In January and February, he gave four negative tests and did not show three times. Father did not attend a scheduled domestic violence assessment in January.
On February 27, 2020, on the date scheduled for the jurisdiction/disposition hearing, father appeared, but mother was not present. The court asked father if he knew whether the department had the correct address for mother, and he responded that they did, and that he lived at that address with mother, adding that he "just moved back a week ago." The court asked why mother was not attending the court hearings, and father responded it was because of her mental health problems. Father requested a contested hearing.
The contested jurisdiction/disposition hearing was not held until August 13, 2020, due to issues related to COVID-19. Mother did not appear. Father testified on his behalf. He testified that on August 9, 2020, he moved out of the home he shared with mother and that he was no longer in a relationship with her. The reason he ended the relationship was because he was trying to be a good father, and mother was not engaged in the case. He reported he had tried to leave the shared residence "every other day" but struggled to find a place of his own due to his bad credit.
Father testified he wanted to keep his new address confidential because he did not want mother knowing where he lived. In response to this, the court inquired as to whether father would be requesting L.H. be released to father. After father's counsel responded in the affirmative, the court noted father would need to disclose his address and asked the in-court social worker whether she had father's new address. The social worker responded that father had informed her he had moved at the beginning of the week, and though she has asked for his new address, he has not provided it. The social worker wanted to do a background check on the other people living in the home but had not received their contact information until the day of the hearing.
Father further testified he was renting a room from a woman he had known since childhood until he could find his own place. The people who lived at the address were the woman and her two 13- or 14-year-old children. To father's knowledge, the woman had no CPS or criminal history. He did not have a written lease agreement, but he could have her prepare one. They had orally agreed that he would pay $350 per month, but he had not yet paid her. Father stated he did not think mother would come to see L.H., but if she did, he would call the police. Father testified that mother was a risk to L.H. when she was not taking her medication.
Father testified he had completed a parenting class and learned a lot from it. Father had raised two children to adulthood and was comfortable taking care of a baby. He acknowledged he had missed some department-referred assessments from January until the time of the hearing because he had concerns surrounding COVID-19 and using public transportation but was willing to participate in services.
Following father's testimony, counsel for the department argued the department did not believe placement with father was appropriate at that time because he had only been in his housing for approximately four days. The department had not yet been able to run background checks on the people in the home or to assess the home for appropriateness. The department requested discretion to progress father's visits.
Counsel for L.H. submitted the matter on the department's recommendation.
Counsel for father first argued the department had not met its burden to prove the jurisdictional findings. As for disposition, counsel objected to the removal of L.H. from father as the department had not met its burden to show substantial danger to L.H. if he were to be returned to father's care nor that no reasonable means existed to prevent removal from father. During argument, counsel asked the social worker if she would have been able to assess father's home prior to the jurisdiction/disposition trial if he had provided an address. The social worker stated they would have initiated background checks for the individuals in the home, which could take a few days to a week or more. Counsel for father continued to argue that substantial danger had not been established. Counsel concluded his argument by stating, "If the Court is not satisfied[,] you could order that [L.H.] be returned to the father today[.] We'd ask to continue disposition and order that the department do that assessment and absent any further showing of substantial detriment[,] I would ask that the minor be returned to the father immediately."
The juvenile court found the jurisdictional allegations as to mother true. As for father, the court noted the jurisdictional allegation that pertained to him was true because he failed to protect L.H. from mother. In support of its finding, the court noted "if [father] was safe," he would have understood why the department was initially investigating the family and had been more cooperative. The court pointed out that father accused the social worker of lying when he tried to serve the protective custody warrant and was aware of mother's CPS and mental health history and should have known mother's risk to L.H.
The court acknowledged that father testified he had separated from mother because she was not participating in the case or taking her medication. The court noted, however, that father maintaining a relationship with mother up until four days before the hearing and subsequently expecting that the department assess his residence before the hearing while not fully communicating with the department about the residence showed a "lack of protective capacity and functional ability." The juvenile court noted: "It's no coincidence father [obtained independent housing] on the eve of the trial." The court went on to say mother was "obviously a risk to children" and that father's continuing the relationship with mother, not initially cooperating with the department, and not establishing independent housing for eight months were reasons he was a risk to L.H. The court also pointed out father had a criminal history, albeit an old one, involving drugs and violence. The court reiterated the entire history of the case so far, including father's "protective and functional capacity," failure to participate in services, failure to reach out to the department, failure to establish earlier housing, and blaming the department for those failures "establishes the risk and the problem in this case."
As to disposition, the court found by clear and convincing evidence that continuance of L.H. in the custody of either parent constituted substantial danger to him. The court found this danger "drives primarily through mother" and father's failure to protect L.H. from mother. The court noted father had knowledge of mother's "disabilities" and was unable to control her behaviors and provide for L.H. safely because "until recently" he and mother were an intact couple. As to whether reasonable efforts had been made to avoid removal, the court stated it did "not well receive [father's] argument about reasonable efforts to avoid removal because [L.H.] was removed on December 27 and this is August 13, nearly eight months later, and the first I've heard of an effort to separate from mother or at least successful delivery of that is four days earlier." The court noted that according to father his new housing was a "great place" with "[p]eople close to him," however, it was "tenuous and uncertain" because he had no lease or rights to the property, and according to father was not a permanent place he wanted to stay and raise L.H. The court stated, "when [father's separate residence has] only been established a couple days [prior] we cannot say this place [] he's living has ameliorated that risk."
The court ordered father be provided with reunification services. Mother was bypassed for reunification services under section 361.5, subdivisions (b)(10), (b)(11), and (b)(13). The matter was set for a combined six- and 12-month review hearing in January 2021, which was the target date for reunification.
DISCUSSION
Father's sole argument on appeal is that the juvenile court erred by denying his request to continue the disposition so the department could assess his recently-acquired residence. Father's argument fails.
Section 352 provides that upon request, the juvenile court may continue a dependency hearing beyond the time limit within which the hearing is otherwise required to be held so long as it is not contrary to the interest of the minor. (§ 352, subd. (a)(1).) "In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (Ibid.) "Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance." (Id., subd. (a)(2).) "Continuances in juvenile dependency proceedings are disfavored, particularly when they infringe on maximum time limits under the code." (In re David H. (2008) 165 Cal.App.4th 1626, 1635.) Pursuant to section 352, subdivision (b), the juvenile court shall not grant a continuance that would result in a dispositional hearing taking place more than 60 days after removal from the parents' custody unless the court finds there are "exceptional circumstances." Section 352, subdivision (b) prohibits the court from granting continuances that would cause the disposition hearing to be completed more than six months after the hearing pursuant to section 319.
We review the juvenile court's denial of a continuance for abuse of discretion; discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. (In re D.Y. (2018) 26 Cal.App.5th 1044, 1056.)
We cannot say the juvenile court's denial of father's request to continue disposition was an abuse of discretion. We first note that the jurisdiction/disposition hearing was taking place over eight months after the detention hearing. Continuances causing a disposition hearing to take place over six months after the detention hearing are prohibited by statute, and the case was impinging upon other statutory time limits for a child under three years of age at the time of removal. (See § 361.5, subd. (a)(1)(B) [reunification services shall not be provided for a period longer than 12 months after the date the child entered foster care when a child is younger than three at the time of removal].) Father's assertion he had obtained a residence separate from mother four days before the hearing, and eight months after L.H.'s detention, did not constitute good cause or "exceptional circumstances" to justify a continuance on the facts of this case.
Aside from the posture of the case in relation to the statutory time limits, father's argument that he demonstrated good cause to continue the hearing fails because it is based on the weak premise that his requested continuance would only delay the case "a few days" for the background checks to be completed. Father's presumption that background checks on the other residents in father's home was the only step in assessing his home is unsupported by the record. More damaging to his claim, however, is that by arguing the successful assessment of father's home was the only impediment to his taking placement of L.H., he ignores the bases for the juvenile court's finding of substantial danger, which was thoroughly outlined by the court. The court's removal order was not based on a finding that father's residence was inappropriate and had not been assessed. Rather, the court clearly explained that the totality of (1) father's behavior at the outset of the proceeding, (2) his maintaining a relationship with mother throughout the proceeding despite her demonstrating risk to L.H., and (3) his obtaining a "tenuous and uncertain" residence separate from mother only four days before the hearing had not demonstrated amelioration of the risk father posed to L.H.—his inability to protect L.H. from mother. Part of the court's reasoning was that four days in his own residence was not long enough to establish father's protective capacity. Thus, even if we assume father's residence was found to be appropriate within a "few days," it is not reasonable the relatively small amount of additional time would have had any effect on the court's finding of substantial danger, a finding that father notably does not contend is supported by insufficient evidence. For these reasons, we cannot say the juvenile court's denial of father's continuance request was arbitrary, capricious, or patently absurd. The juvenile court did not abuse its discretion when it denied father's request to continue the disposition hearing. We find no error.
Though father makes no challenges to the court's factual findings, we note all the reasons the court gave to support its finding that father simply obtaining a separate residence, without more, did not ameliorate his inability to protect L.H. from mother—there was no lease, rent had not been paid, and it had only been four days—are all supported by the evidence.
We also note the department's jurisdiction/disposition report suggested that mother and father had lived apart at some point in February, and at that time, the recommendation was still removal because there were concerns father would leave L.H. with mother. Later that month, father stated in open court he had "just moved back [with mother] a week ago." These facts demonstrate not only that father's ability to obtain a separate residence from mother was not the only impediment to safe placement of L.H. with him, but also that father had previously succeeded in obtaining a residence separate from mother but subsequently moved back in with her a short time after.
The court's conclusions that despite father obtaining a separate residence from mother, the problems leading to removal had not been ameliorated, and that reasonable efforts could not be made to prevent removal from father was reasonably substantiated by the evidence.
DISPOSITION
The juvenile court's dispositional order is affirmed.