Opinion
E081539
01-29-2024
In re A1.F. et al., Persons Coming Under the Juvenile Court Law. v. M.F., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J294933, J294934 & J297021. Annemarie G. Pace, Judge.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant M.F. (father) challenges the juvenile court's dispositional order bypassing his reunification services pursuant to Welfare and Institutions Codesection 361.5, subdivisions (b)(10) and (c)(2), as to his children, Al.F., As.F., and M.J. He contends there is insufficient evidence to support the finding that he had not made reasonable efforts to address his problems related to domestic violence, or alternatively, the court abused its discretion by not ordering services because reunification was in the best interest of the children. We reject his contentions and affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
I. PROCEDURAL BACKGROUND AND FACTS
Only Al.F., As.F., and M.J. are at issue in this appeal; however, mother's and father's other children are referred to for context purposes only.
A. Prior Dependency of Father's Older Daughter.
In August 2018, the San Bernardino County Children and Family Services (CFS) received a first referral involving father when he attacked Ai.F.'s (born in August 2017) mother, abducted their daughter, and threatened that Ai.F.'s mother would never see her again. On June 25, 2019, CFS received a second referral that alleged father, while holding Ai.F., hit the child's mother with a hammer on her arm. Subsequently, CFS initiated dependency proceedings pursuant to section 300, subdivisions (a), (b)(1), and (g), based on the parents' acts of domestic violence, failure to protect, and failure to provide for Ai.F.'s support. Although Ai.F.'s mother called law enforcement to report father's domestic violence, and officers had observed injuries to her arms, she would not follow through. The juvenile court found the allegation that father engaged in domestic violence to be true and removed Ai.F. from parental custody. Father participated in reunification services and made substantial progress; however, at the 12-month status review hearing, the court found that he failed to participate regularly and make substantive progress in the court-ordered case plan. Ai.F. was returned to mother's custody only; the court found that return to father's custody was detrimental to the child and not in her best interests.
B. Current Dependency.
1. Investigation and detention hearing.
On October 15, 2022, CFS received a referral with allegations of physical abuse, emotional abuse, and general neglect to mother's four children, including Al.F. (born in May 2021) and As.F. (born in May 2022). Mother's eldest child, E.J. (born in December 2010) had called the maternal great-grandmother and reported the family dogs accidentally got out of the garage and he was afraid of what mother would do to him. E.J. disclosed physical abuse perpetrated by mother and her boyfriend, father, and reported that mother spanked the children using a belt or grabbed them by the hair and pulled them, and father punched the male children as a form of discipline. The children feared both parents. They were picked up by the maternal grandmother who brought them to stay with the maternal great-grandmother.
On October 20, 2022, the social worker interviewed the children. E.J. reiterated his prior claims of physical abuse and added that mother had left him and his siblings home alone while she attended a party in Los Angeles. The children disclosed domestic violence between mother and father, including physical altercations. They have seen bruises on mother, and father had been arrested for domestic violence. The children stated they never feel safe with father, and only feel safe with mother "sometimes." The maternal great-grandmother said the children were worried that mother would be angry with them for telling the social worker the truth. She opined the older children "have been parentified as they have always watched and cared for their younger siblings." She added that E.J. experiences "nervousness, anxiety and a nervous stomach[; he] is always worried his mother will be mad at him for something, and he does not want to disappoint [her]."
In her interview, mother denied that father resided in the home, denied any domestic violence between them, denied using physical discipline in the home, claimed she had not seen father in a long time, and indicated she had no contact information for him. However, she also claimed the children, Al.F. and As.F., were living with father. The social worker interviewed the maternal grandmother who confirmed that she had picked up the children on the night of October 14, 2022, and that E.J. was "in the fetal position 'crying his little heart out'" because he was afraid of being in trouble with mother. In his interview, father denied being in a relationship with mother, denied domestic violence between them, and claimed that he had custody of Al.F. and As.F. He acknowledged a previous dependency case involving another child by a different mother; he denied that his services were terminated and claimed that he had completed all of them. Two other minor children living with mother confirmed that father is often at the home, he physically abuses mother (including choking her), the two frequently argue, and mother hits the children using a belt, hanger, or a branch.
Based on the information obtained in the investigation, a detention warrant was obtained, and the children were taken into protective custody. On November 3, 2022, CFS initiated this dependency proceeding on behalf of Al.F. and As.F. pursuant to section 300, subdivisions (b)(1) and (j), alleging the parents engaged in domestic violence in the presence of the children, placing them at a substantial risk of harm, and in 2019, a half sibling (father's child, Ai.F.) was permanently removed from father's custody due to concerns of domestic violence. On November 4, 2022, the juvenile court detained the children and removed them from the parents' custody. A combined jurisdiction and disposition hearing was set for December 5, 2022.
2. Combined jurisdiction/disposition reports and hearings.
According to the jurisdiction/disposition report filed December 2, 2022, and an addendum filed January 18, 2023, CFS requested a 40-day continuance so the children could undergo a children's assessment center (CAC) forensic interview due to concerns they were being coached by the parents. The initial report summarized the social worker's November 21, 2022 interviews with the three oldest children living in mother's home. E.J. recanted his prior statements regarding domestic violence between mother and father, their disciplinary actions, and life in the home. K.H. (born in 2012) was initially silent, but later maintained the claims that father lived in the house, mother had left the children alone, there was domestic violence between mother and father (including father choking mother), they used physical force to discipline the children (including father hitting E.J.), and mother had left the children alone to "go to LA." She stated that mother had told her what to say to the social worker. B.F. (born in 2016) was hesitant to speak, but after disclosing physical abuse by mother he began to cry. Mother and father failed to acknowledge any abuse the children had reported and remained adamant that they did not live with each other, did not engage in domestic violence, and did not use physical discipline on any of the children. According to the addendum, mother was living in Los Angeles, visiting the children via video, and was pregnant with a due date of May 22, 2023. CFS provided copies of father's prior dependency case from 2019 (his daughter Ai.F.), which involved allegations of domestic violence and resulted in termination of his reunification services on October 7, 2020. The juvenile court continued the hearing to allow completion of the CAC forensic interviews.
In its second addendum to the jurisdiction/disposition report filed March 3, 2023, CFS recommended the juvenile court find the allegations true and order the children removed from parental custody, with no reunification services offered to father pursuant to section 361.5, subdivision (b)(10). The forensic interviews with the children revealed the following: (1) B.F. disclosed that father locked him in the garage as punishment or hit him with a belt (with mother's knowledge), father hit E.J. "bad" and pulled him downstairs, and when mother and father fought, mother would get hurt; and (2) K.H. divulged that father hit mother multiple times or choked her causing bruising on her body that she did not want the children to reveal to others, mother hit her (K.H.) and left her alone with father, father disciplined the boys (E.J. and J.F.) by hitting them, and mother told the children that "if they said what was going on, [their] little sisters would be taken away." The children's caregiver reported that mother and father were currently living together, and she observed mother to have a black eye. Father continued to deny living with mother and stated he had completed his domestic violence and parenting education classes. Mother also denied living with father and denied domestic violence in the home. A contested hearing was set for May 9, 2023.
On May 4, 2023, the juvenile court received an additional information 6.7 report that indicated father had completed a parenting program, a domestic violence program, and eight sessions of individual therapy to address the reasons for CFS's involvement, including disclosures of domestic violence. He was participating in supervised visitation; however, in April, the caregiver complained that when dropping off father's children for visitation, father made comments to the half siblings that B.F. was a pervert, and told J.F. to keep his "hands off" father's daughters. The 6.7 report also included the results of E.J.'s forensic interview. E.J. disclosed that mother and father "punch, smack and push each other on the face, arms and chest," resulting in mother having bruises that the children were told not to report. E.J. described father discipling B.F. by forcing him to hold a "punch jug" filled with water in each hand while standing on a chair "for hours." One time, father threw sand in B.F.'s eyes and made him stay in the garage in the dark, causing him to bang on the garage door and cry. CFS continued to recommend bypassing reunification services pursuant to section 361.5, subdivision (b)(10).
Mother gave birth to M.F. in April 2023, and CFS initiated dependency proceedings for M.J. pursuant to section 300, subdivisions (b)(1) and (j). The child was detained, and the matter was set for a combined jurisdiction and disposition hearing on May 30, 2023.
a. Contested jurisdiction/disposition hearing for Al.F., As.F.
At the contested hearing on May 9, 2023, father testified that he completed a domestic violence program and learned how some of his actions constituted domestic violence. He denied any outburst toward B.F. or calling him a "pervert." He claimed to have learned from his prior mistakes and how to appropriately discipline the children. Father accused mother of being the aggressor in any instances of physical domestic violence, claiming that he only acted in self-defense. He did not disclose the physical domestic violence because he did not want to "make things worse with her because she's a mother," and he "barely could get into contact with the social workers." He admitted to swearing and yelling at mother, and claimed that she would break things during their arguments. He denied being in a relationship with her at any time or committing any physical violence toward E.J. or B.F. Following his prior dependency, father did not engage in any services.
The social worker testified that father continued to deny any physical altercations between himself and mother or the children; however, he acknowledged verbal disagreements with mother. She stated the children remained consistent in their statements regarding physical abuse by father against themselves and mother, identifying father as the aggressor. Although the social worker conceded father's completion of therapy and domestic violence and parenting programs, she opined that he "failed to acknowledge the reasons [CFS was] involved, specifically the domestic violence, which the report that [CFS] received said he did not talk about physical domestic violence. So there's been no acknowledgment of why we became involved with his family."
Father's counsel asked the juvenile court "not to order the bypass" because father showed he "has to be responsible for himself" and "has made an effort to correct the problem." Counsel for CFS and the children claimed otherwise, arguing father had not benefitted from the services because he "wasn't being truthful to his therapist or the social worker. He still hasn't acknowledged the domestic [physical] violence that did occur" as consistently stated by the children. CFS counsel asked the court to find the children's statements more credible than father's testimony. She pointed out the contradictory claims and mother's request to the children to "lie to CFS." She added that "there [have] been incidents even in the courtroom or outside the courtroom where [father] has threatened other relatives regarding visitation, regarding placement." She argued father "has not substantially made reasonable efforts to treat the problems that led to the removal of his child [in 2020].... He was offered domestic violence, counseling, anger management, parenting, a substance abuse program, and outpatient program. [¶] Unfortunately, [he] did not participate in his case plan and did not complete his case plan components to get his child returned to his care and custody, and therefore services were terminated to him." CFS asked the court to find the allegations true and bypass services for father.
After finding the allegations true, the juvenile court observed that father had completed the programs offered by CFS and "to some degree [he] has benefitted, but certainly not to the extent that I would have hoped." The court opined that "reasonable efforts means more than simply attending the classes." The court noted that father's history of domestic violence dates back to 2019 and in "this case the record is replete with significant domestic violence between the parents and the physical violence the father clearly has minimized." It concluded that father failed to make "reasonable efforts to alleviate the issues," and failed to establish that it would be in Al.F.'s and As.F.'s best interests to offer reunification services. Thus, the court removed the children from parental custody and ordered no reunification services to father under section 361.5, subdivision (b)(10).
b. Contested jurisdiction/disposition hearing for M.J.
On June 14, 2023, the juvenile court held a contested jurisdiction and disposition hearing for M.J. At the hearing, father testified that he asked to take more classes "to help [him when he] get[s] frustrat[ed] dealing with [his] kids," specifically how they are being treated in the home of their caregivers. He admitted getting upset with the social workers and stated that he would try to be more calm. He did not want the court to bypass reunification services for him based on the prior termination of services; he explained that his services were previously terminated because he was incarcerated at the time of the hearing. Father's counsel argued that father is "involved in [his children's lives] at least through visitation[, and] it would be in [M.J.'s] best interest if [he] got services so that he could better deal with [mother] so there would not be this problem in the future, since it appears [she is] getting services and hopefully the children will be returned to a parent." Counsel for CFS and M.J. argued father has not met his burden of showing he had made reasonable efforts to treat the problem that led to the removal of M.J.'s siblings.
Following argument, the juvenile court found the allegations regarding domestic violence to be true. The court reiterated the same bases for which it had denied father reunification services as to Al.F. and As.F., stating although father had participated in predisposition services, he has not benefitted from them and has not acknowledged the issues (domestic physical violence) that lead to removal of M.J.'s siblings. The court applied section 361.5, subdivision (b)(10), and bypassed services for father. While the court was making its findings and orders, the following interaction occurred: "THE FATHER: So I did everything and you all just say it like that, there's no second chance? I did everything I'm supposed to do. [¶] THE COURT: [Father], if you don't stop talking you're going to leave the courtroom. [¶] THE FATHER: I'm not going to get them anyways. [¶] THE COURT: John, he's done. [¶] THE FATHER: Fuck you."
II. DISCUSSION
Father contends the juvenile court's order denying him reunification services is not supported by substantial evidence. (§ 361.5, subd. (b)(10).) Alternatively, he contends the court abused its discretion in failing to order services because reunification is in the children's best interest. (§ 361.5, subd. (c)(2).)
A. Bypass of Reunification Services Under Subdivision (b)(10) of Section 361.5.
1. Statutory framework and standard of review.
In general, "when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to 'the child and the child's mother and statutorily presumed father ....' (§ 361.5, subd. (a).) The purpose of reunification efforts is to 'eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible.' [Citation.] However, it is also the 'intent of the Legislature, especially with regard to young children, . . . that the dependency process proceed with deliberate speed and without undue delay.' [Citation.] Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. [Citation.] Specifically, section 361.5, subdivision (b), exempts from reunification services '"those parents who are unlikely to benefit"' [citation] from such services or for whom reunification efforts are likely to be 'fruitless' [citation]." (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 11201121 (Jennifer S.).)
Here, the juvenile court denied reunification services to father based on subdivision (b)(10) of section 361.5, under which services need not be provided if the court finds by clear and convincing evidence that reunification services were terminated for any siblings or half siblings of the child because the parent failed to reunify with the sibling or half sibling and, according to the findings of the court, the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling. (§ 361.5, subd. (b)(10); In re Jayden M. (2023) 93 Cal.App.5th 1261, 1272, fn. omitted ["the Department bears the burden of proving by clear and convincing evidence that (1) the juvenile court had ordered termination of reunification services (under § 361.5, subd. (b)(10)) or had severed parental rights (under § 361.5, subd. (b)(11)) in a prior case involving a sibling or half sibling of the child in the current case; (2) the 'problem[] that led to removal' of the sibling or half sibling is the same problem at issue in the current case, insofar as the problem involves the same 'theme' even if it is not identical; and (3) the parent has 'not subsequently made a reasonable effort to treat th[at] problem[].'"].) "The 'reasonable effort[s]' necessary to avoid section 361.5, subdivision (b)(10) bypass are not synonymous with '"cure."' [Citation.] They must, however, be more than '"lackadaisical or half-hearted."' [Citation.] Moreover, not every 'effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made.' [Citation.]
"We review an order denying reunification services under subdivision (b) of section 361.5 for substantial evidence. [Citation.] Under such circumstances, we do not make credibility determinations or reweigh the evidence. [Citation.] Rather, we 'review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings.' [Citation.] In doing so, we are mindful of the higher standard of proof required in the court below when reunification bypass is ordered." (Jennifer S., supra, 15 Cal.App.5th at pp. 1121-1122.)
2. Validity of father's bypass order.
Here, father does not dispute that the first two factors of section 361.5, subdivision (b)(10), were established by clear and convincing evidence-evidence his services were terminated in a prior dependency case involving a half sibling and the prior dependency case involved domestic violence, which is at issue in the current petitions. Rather, he argues substantial evidence does not support the juvenile court's finding that he failed to make reasonable efforts to treat the problems that led to removal of the half sibling. To that end, he contends: (1) he had participated in and completed the programs he was required to take "prior to the contested hearings in May and June 2023"; (2) he had cooperated, gained insight, and benefited from the classes; (3) the social worker failed to "follow up with [his] therapist . . . in order to get a progress report about his therapy"; (4) "the temporal vagueness about the parents' past domestic violence [suggests] the parents' domestic violence occurred during the time period for the prior dependency case, 2019 to 2021, and [his completed classwork, both recently and from his last dependency case] has indeed caused him to gain insight and not continue to commit acts of domestic violence"; and (5) his attendance at every court hearing and visitation, his acknowledgment of his past wrongdoings, and his testimony as to the insight he has gained in his classes indicate that he "is close" to taking ownership of his acts of domestic violence despite his minimization of them. He further accuses the juvenile court of "appear[ing] to require that the problem necessitating jurisdiction-here, domestic violence-be completely alleviated" by "set[ting] the standard for showing 'reasonable efforts' and avoiding bypass too high." We are not persuaded by father's argument.
We agree that because reunification services were ordered for mother, the issue of delaying permanency for the children when reunification efforts are likely fruitless is not at issue.
While we agree father has completed everything-classes and programs-that was asked of him prior to the contested hearings in May and June 2023, we have no difficulty concluding substantial evidence supports the juvenile court's bypass order. As CFS points out, the overwhelming evidence shows that father was the perpetrator of violence against mother (including the mother in his prior dependency case) and the children. The children were "consistent in their statements regarding domestic violence between the mother and the father," and identified father as the aggressor.
In contrast, father refused to acknowledge his acts of domestic violence. Instead, he denied any verbal abuse directed at the half siblings or their caregivers, denied physically attacking mother-claiming she was the aggressor and he only acted in self-dense, and denied ever living with mother and the half siblings. In addressing his domestic violence problems, he testified that he is "staying focused. [He has] been going to work, . . . going to church, . . . [¶] . . . been to every visit, . . . [d]oing these classes, . . . and coming up with a game plan." He claimed the classes helped him; he "admitted domestic violence [to] the social worker" because he had learned that "just because [he was] not hitting [mother], . . . doesn't mean [he] wasn't doing domestic violence." Nonetheless, father refused to acknowledge his acts of domestic violence against mother and the half siblings, the reason CFS became involved with his family.
The court observed that the record "is replete with significant domestic violence between the parents and the physical violence the father clearly has minimized. The number of witnesses to that are consistent and corroborate one another. There's also corroborated incidents of [father] using physical abuse against [the half siblings] in this case.... All of that has been minimized." Under such circumstances, we find no fault with the court's observation that father "to some degree has benefitted," but has not "made subsequent reasonable efforts to alleviate the issues" that led to removal of his children.
B. Best Interest of the Children Pursuant to Section 361.5, Subdivision (c)
"Pursuant to section 361.5, once the juvenile court determines that a parent is described by subdivision (b)(10) of that statute, it shall not order reunification services for that parent 'unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.' (§ 361.5, subd. (c)(2).) '"The concept of a child's best interest 'is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult.'"' [Citation.] Nevertheless, precedent supplies certain relevant considerations when making a best interests determination. For instance, '[t]o determine whether reunification is in the child's best interest, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity.' [Citations.] It is the parent's burden to prove that the minor would benefit from the provision of court-ordered services. [Citation.] We review a juvenile court's best interest determination in this context for abuse of discretion. [Citation.]" (Jennifer S. v. Superior Court, supra, 15 Cal.App.5th at pp. 1124-1125.)
Here, the juvenile court expressly found that offering reunification services to father would not be in the children's best interest. Father challenges this finding, claiming that (1) "there is no delay in permanency for the minors due to mother's participation in reunification" services; (2) father and mother are a family unit because of their three children and thus it is in their best interest that father be allowed to "continue to work on his volatile relationship with mother through his participation in additional services," and (3) he is the primary caregiver of the children. He argues that "given the familial circumstances presented by this case, any services to help mother and [father], even if such efforts only produce minimal additional results, are in the minors' best interest in order to strengthen the parents' relationship so that [father] and mother can successfully coparent together-not for themselves, but for the benefit of the minors." In claiming the court abused its discretion in failing to offer him reunification services, father cites in In re G.L. (2014) 222 Cal.App.4th 1153 (G.L.) and In re William B. (2008) 163 Cal.App.4th 1220 (William B.). However, these cases are distinguishable.
In both G.L. and William B., the juvenile court granted the offending parents reunification services despite ongoing concerns with substance abuse. (G.L., supra, 222 Cal.App.4th at p. 1163; William B., supra, 163 Cal.App.4th at p. 1226.) However, this case involves allegations of father physically abusing both mother and her children, the half siblings. Also, both cases have a different procedural posture than the case before this court. In G.L., the juvenile court found reunification efforts to be in the minor's best interest, and the appellate court concluded that this determination did not constitute an abuse of discretion. (G.L., at p. 1166.) Here, in contrast, the juvenile court expressly found that offering reunification services to father would not be in the children's best interest. To reverse this determination, we would be required to conclude that the court had abused its discretion. We decline to do so. Father exposed his children to significant violence in the home in this dependency and the prior dependency involving Ai.F. Despite the consistent statements of mother's children, the half siblings, father continued to deny allegations of domestic physical abuse. The fact that there is no delay in permanency for the children since mother is participating in reunification services does not change our opinion. As CFS notes, mother's "reunification appears to hinge on her own acknowledgement and acceptance of the violence present in the home. Her continued relationship with [f]ather is an impediment to that progress." As previously stated, father accused mother of being the aggressor despite the children's statements to the contrary, and mother coached the children to deny any domestic violence or physical abuse in the home.
In short, father cannot demonstrate the juvenile court abused its discretion by concluding it is not in the children's best interest to offer him reunification services. Although he presented evidence of his completion of the required classes and programs, such evidence did not compel the court to make a best interest finding, given all the other evidence supporting the opposite conclusion. Indeed, given the children's statements, father's history of domestic violence, and his refusal to admit to his abusive nature, we would be extremely hard pressed to find error on the part of the court below based on its analysis of the children's best interest. As the G.L. court noted in upholding the best interest determination of the juvenile court in that case, the fact "[t]hat there is evidence in the record supporting the opposite finding . . . does not mean the court abused its discretion in finding it was in G.L.'s best interests to reunify with [his mother]." (G.L., supra, 222 Cal.App.4th at p. 1166.) Similarly, the contrary evidence father marshals in this case does little to persuade us that the juvenile court abused its discretion in reaching the opposite conclusion from that which he seeks.
III. DISPOSITION
The juvenile court's dispositional orders are affirmed.
We concur: RAMIREZ P. J., RAPHAEL J.