Opinion
E074201
05-13-2020
In re C.S-B., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. B.S-B., Defendant and Appellant.
Suzanne Davidson, under appointment by the Court of Appeal for Defendant and Appellant. Michelle D. Blakemore, County Counsel, David Guardado, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J281134) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Suzanne Davidson, under appointment by the Court of Appeal for Defendant and Appellant. Michelle D. Blakemore, County Counsel, David Guardado, Deputy County Counsel for Plaintiff and Respondent.
At a disposition hearing, the juvenile court ordered C.S-B. (Minor) be removed from the custody of Br.S-B. (Mother) and Be.S-B. (Father). The juvenile court ordered supervised visitation between Minor and Father once per week for two hours in California. The juvenile court denied Father's request to have San Bernardino County Children and Family Services (the Department) transport him from Michigan to California for visits. Father contends the juvenile court erred by denying his transportation request. We affirm the disposition order.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Mother has two children with two fathers. Mother and Father are the parents of Minor, who is female and was born in June 2016. Mother and J.H. (Father-H) are the parents of R.H., who is male and was born in July 2009. Mother and Father met on a bus in 2015 while Mother and R.H. were traveling. Mother's travel plans fell through, so she moved in with Father three days after meeting him. Mother and Father are married, but separated in August 2018.
In January 2019, the State Court of Michigan, Fourth Circuit Court, in Jackson County, entered an order awarding (1) Mother sole physical custody of R.H.; (2) Mother and Father-H joint legal custody of R.H.; and (3) "flexible parenting time" for Father-H. The order provided that R.H.'s domicile "may not be moved from Michigan without the approval of this Court." The order also provided that R.H.'s legal residence could not be moved more than 100 miles.
Mother's boyfriend is N.G. (Boyfriend). Mother, Boyfriend, R.H., and Minor moved from Michigan to California, arriving on May 3, 2019. Mother, Boyfriend, and the children resided with Mother's mother (Grandmother) in the Barstow area.
B. DETENTION
On May 17, 2019, the Department was informed that R.H. admitted to sexually abusing Minor five separate times by touching her with his hand and penis. Grandmother said R.H. put bleach and soap in the family's food, urinated in their drinking water, and masturbated into their food. R.H. stabbed Grandmother's foot while she slept. On May 18, Mother brought R.H. to the emergency room for a mental health evaluation. Mother asked to leave R.H. at the hospital because she no longer wanted him. R.H. had "bruising in different stages of healing on the face, arms and genital area." R.H. admitted stabbing Grandmother's foot, putting bleach in the food, and urinating in the water. R.H. said the bruise on his forehead resulted from Boyfriend punching him.
When contacted by the Department, Father, who was in Michigan, said the last time he saw Minor was in August 2018. Father said he had not seen Minor since then because Mother " 'cut off all contact with him and left town.' " Father did not know Minor was in the Barstow area. The Department placed Minor in a foster home and placed R.H. in a group home.
C. JURISDICTION
Mother said she "left Michigan in hopes to find safety from [Father]. She stated that [Father] has attempted to kill her and her children. [R.H.] told the hospital staff that [Father] tried to 'choke him to death' and kicked him in the privates multiple times." Mother asserted that, after she and Father married in May 2016, Father began abusing her.
In regard to the abuse by Father, Mother said, "'[Father] grabbed me and fought me to the ground. He woke me up in the middle of the night and raped me. . . . He fingered my daughter and choked my son.' [Mother] disclosed that [Father] has hit her against a basement wall." In regard to Minor, Mother alleged that Father inserted his finger into Minor's vagina while changing her diaper. Mother also alleged (1) in 2017, a 12-year old girl accused Father of asking to kiss her; and (2) in 2018, Father raped a 14-year-old girl who Mother babysat. Mother said Father had not financially supported Minor.
Father denied abusing Mother. Father said, "'[W]hen things got hard, [I would] punch a hard surface.'" Father denied any abuse toward R.H. and Minor. Father "admitted to the mother's sexual conduct claims," but asserted that he was a minor; Father was born in 1993. Father had been diagnosed with depression and anxiety, but he was not taking medication. Father told the Department "that he does not have appropriate income at the moment, and is currently attempting to retrieve employment or funding to obtain custody of [Minor]"
On June 19, 2019, the juvenile court said, "Michigan is the home state of these children." The Department said, "[W]e're asking for authority to return each child to their respective fathers if appropriate." The Department requested a continuance to work with "CPS in Michigan and the respective counties of the fathers." The juvenile court continued the hearing to July 22.
On July 2, R.H. was released to Father-H. Also on July 2, the Department spoke with Father. Father said he wanted custody of Minor. Father remained unemployed; he donated plasma for income and lived with his Mother who helped support him. Additionally on July 2, the Department spoke "with Isabella County, DHH Services Supervisor" who was familiar with Minor's family in Michigan due to "multiple referrals." The Michigan Department of Health and Human Services (HHS) said the sexual abuse allegation involving Father and Minor was closed as unfounded., but there were two substantiated allegations involving Father physically abusing R.H. Due to the substantiated allegations, the family was placed on voluntary family maintenance. Father did not participate in the voluntary services, and, after moving out of the family home, did not visit Minor for "a long time." The Department requested HHS conduct a home assessment of Father's home.
On July 18, HHS sent the Department an assessment of Father and Father's home. HHS recommended "that [Father's] mental health history be requested, and that [Father] participate in a Psychological Evaluation." On July 22, the juvenile court dismissed R.H.'s case. The Department contended that Michigan was not assuming jurisdiction in Minor's case, so San Bernardino County had jurisdiction over Minor's case. On July 22, the juvenile court set the matter for a contested hearing on August 14.
Mother moved to Florida with Boyfriend, arriving on July 2. Mother and Boyfriend were homeless. Mother did not want to reunify with Minor because Mother did not "'want [Minor] living in the streets.'" On August 14, Mother informed the Department that she and Boyfriend were in Michigan "because they have an opportunity to own their own trailer, and she and [Boyfriend] have found work." In the meantime, Mother and Boyfriend were residing in a tent.
Minor's foster parent reported to the Department that Minor "is picking her lip until it bleeds, pulling out her hair, sticking fingers in her front and back private areas, looking over her shoulder when she walks, and is annoyed when people ask questions. [The foster parent] report[ed] that [Minor] will often accuse people of hurting her although they have not . . . [and Minor] seems to hear things and see things that are not there." A mental health assessment was scheduled for Minor.
On August 14, the juvenile court continued the contested jurisdiction hearing for a week, in part, to "see if we can get Michigan to do something since the child is actually a resident of Michigan, or was." On August 21, the juvenile court continued the hearing to September 12 because "[Minor] was only here with Mother for about a month and a half after Mother left Michigan. Both parents are now in Michigan. [Father] was always there." The court explained that it had e-mailed the court in Michigan but had not received a response. The court asked the Department to again discuss the case with HHS.
On September 12, the court said, "We're still trying to get Michigan to agree they're the home state and do something with our referrals that are being called in." The court continued the hearing to October 17. On October 17, the Department explained that it "called in a referral" to HHS in Isabella County, where Mother and Father resided but HHS would not investigate because Minor was not in Michigan. The Department left a message with a director of HHS but had not received a response. The juvenile court continued the hearing to November 19.
On November 19, the Department explained that HHS social workers misunderstood the process for transferring cases. The Department had been unable to reach an HHS attorney who could assist the Department. The juvenile court said its last e-mail to a referee in Isabella County went unanswered. The juvenile court concluded Michigan waived its jurisdiction over the case.
The juvenile court found true the allegations that (1) Father physically abused R.H., which placed Minor at risk of harm (§ 300, subds. (a), (b) & (j)); (2) Mother failed to protect R.H. when Boyfriend physically abused R.H., which placed Minor at risk of harm (§ 300, subd. (b)); (3) Mother failed to protect R.H. when Father physically abused R.H., which placed Minor at risk of harm (§ 300, subd. (b)); (4) Mother continued to engage in relationships involving domestic violence, which placed Minor at risk of harm (§300, subd. (b)); and (5) Mother abandoned Minor to reside in Florida and Michigan (§300, subd. (g)).
D. DISPOSITION
The juvenile court found Father was Minor's presumed father. The court found Mother and Father made no progress toward resolving the issues that led to Minor's removal. The court ordered Minor remain in her foster home. The court ordered reunification services for Mother and Father, whose case plans included counseling, a domestic violence program, and parenting classes. The court granted Mother and Father supervised visitation with Minor, in California, once per week for two hours.
At the end of the hearing, the following exchange occurred:
"[Father's attorney]: And he would request—based upon the Court finding the allegations true, he would request family maintenance and transportation assistance for visitation if possible.
"The Court: I am not going to require the Department to transport him to California from Michigan."
DISCUSSION
Father contends the juvenile court erred by denying his request for transportation assistance.
When a court places a child in foster care and orders reunification services, it must also order visitation between the parents and child. (§ 362.1, subd. (a)(1)(A).) There is no direct legal authority requiring a child welfare agency to pay for a parent's transportation to visits. (Los Angeles County Dept. of Children and Family Services v. Superior Court of Los Angeles County (1997) 60 Cal.App.4th 1088, 1093.)
Father raises his argument under the legal umbrella of "reasonable services." "The adequacy of a reunification plan and of the department's efforts are judged according to the circumstances of each case." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.) "[T]o make the requisite findings, the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed)." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
"[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) We "must view the evidence in a light most favorable to the [Department]. We must indulge in all legitimate and reasonable inferences to uphold the [finding]." (In re Misako R., supra, 2 Cal.App.4th at p. 545.)
Father asked the juvenile court to have the Department pay for his transportation between Michigan and California. The juvenile court denied the request for such an order. The fact that the juvenile court refused to order the Department to pay for Father's transportation does not mean that the Department refused to pay for Father's transportation. It is possible that the Department has agreed to pay for Father's transportation despite the lack of court order. Nevertheless, for the sake of addressing Father's argument, we will proceed under the assumption that the Department refused to assist Father with transportation between Michigan and California. We will then compound that assumption by assuming the juvenile court found that assumed refusal to be reasonable.
The record reflected that when Minor's family had a voluntary family maintenance plan in Michigan, and Father moved out of the family's house, Father did not visit Minor for "a long time." Thus, Father did not visit Minor when she was in his local area. The juvenile court could reasonably find from this evidence that Father was likely to miss scheduled visits in California, given his failure to visit Minor when she was in the same state as Father. The Department and juvenile court could reasonably conclude from the foregoing evidence that until Father successfully attended a series of telephonic or videoconference visits, it would be unreasonable for the Department to fund transportation for in-person visits.
Alternatively, Father said he did not pay any rent or bills at his mother's house. The house was newly built and included 15 acres of land. Father's mother (Grandmother-B) told the Department that she had medical insurance and could put Minor on her insurance plan if needed. Grandmother-B's home had a bedroom for Minor that "included a twin size bed, a table, some toys and a few articles of clothing." Father told the Department "that although he is unemployed that he is not concerned with finances, as his mother is able to assist. The [Department] then spoke with [Grandmother-B]. [Grandmother-B] indicated that she is able to assist [Father] in raising [Minor] in addition to providing financial support. [Grandmother-B] indicated that she is debt free, and is currently working as care provider for [her] mother. She indicated also receiving a social security check."
The juvenile court could reasonably find from this evidence that Father's family could fund his visits if he chose to come to California. Under that evidence, it would be unreasonable for the Department to fund Father's travel when Father's primary source of income, i.e., Grandmother-B, could fund his travel. In sum, substantial evidence supports the assumed reasonable services finding.
Father contends there is no evidence indicating Grandmother-B could afford to pay for Father's travel to California. We agree there is no direct evidence of Grandmother-B's ability to pay for Father's travel; however, there is circumstantial evidence that the juvenile court could have relied upon. For example, there is evidence that Grandmother-B resides in a newly built house on 15 acres with a horse, and she is debt-free. One could reasonably infer from this evidence that Grandmother-B could afford bus tickets or gasoline for Father's travel to and from California. (See In re Misako R., supra, 2 Cal.App.4th at p. 545 [we must view the evidence in the light most favorable to the finding].)
The Department contends that Father's transportation issue is not ripe for appellate review because Father has not demonstrated that he will be unable to visit Minor. "[C]ourts generally will not consider issues based on speculative future harm. [Citation.] This is particularly true where the complaining party will have the opportunity to pursue appropriate legal remedies should the anticipated harm ever materialize." (Metropolitan Water District of Southern California v. Winograd (2018) 24 Cal.App.5th 881, 893.)
As explained ante, it is possible (1) Father will not try to visit Minor in California; (2) Father's family could fund his trips; or (3) the Department will agree to aid Father in funding his trips. Thus, we agree with the Department that harm has not been demonstrated by Father. Moreover, it is possible that Father could raise this issue again in the juvenile court, e,g, with a motion supported by evidence, because it does not appear that the request was denied with prejudice.
Nevertheless, because this is a dependency case that began when Minor was two years old, we decided to address the merits of the issue now because such cases are meant to be resolved quickly. (§ 361.5, subd. (a)(1)(B) [for a child who is under three years old at the time of removal a maximum of 12 months of reunification services may be provided].) Minor was placed in foster care in May 2019, which means the 12-month clock for reunification services is nearing its end. Given the statutory timeline for the case, if we waited for Father to somehow be harmed, then he could have difficulty obtaining timely legal remedies for the harm sustained, in that the statutory time for services could expire before the harm could be repaired. In sum, while we agree the issue is not entirely ripe, we thought it best, in terms of the statutory timelines, to address the merits of the issue now.
DISPOSITION
The disposition order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.