Opinion
D059192
10-18-2011
In re ERICK H., JR., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MARIA P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J517937B)
APPEAL from a judgment of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.
Maria P. appeals following the dispositional hearing in the dependency case of her son, Erick H., Jr., (Erick, Jr.). Maria contends clear and convincing evidence did not support the order adjudicating Erick, Jr., a dependent of the juvenile court and the court erred by removing Erick, Jr., from her custody and requiring that visits be supervised. We affirm.
PROCEDURAL BACKGROUND
In September 2010, when Erick, Jr., was less than a year old, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition alleging the following: On August 21 Erick, Jr., was exposed to a violent confrontation between his father, Erick, Sr., (Erick) and Maria at Erick's home. Erick grabbed Maria while she held Erick, Jr.; he pulled her, causing her to fall to the floor; and he dragged her outside. Maria sustained bruises. She reported an earlier incident of domestic violence but then minimized it. She remained in contact with Erick. Erick admitted daily use of heroin. In his home he had heroin, marijuana, Vicodin and drug paraphernalia, some of which was accessible to children. (Welf. & Inst. Code, § 300, subds. (a), (b).)
Maria and Erick never lived together.
All further statutory references are to the Welfare and Institutions Code.
Erick, Jr., was detained in the home of a nonrelative extended family member. In November 2010 the court entered true findings on the petition. At the dispositional hearing in December, the court declared Erick, Jr., a dependent child (§ 360, subd. (d)), removed him from his parents' custody (§ 361, subd. (c)(1)) and ordered him placed with the nonrelative extended family member. The court ordered that visits be supervised and, with certain conditions, gave the social worker discretion to allow unsupervised visits, overnight visits and a 60-day trial visit. In July 2011 the court ordered Erick, Jr., placed with Maria.
THE DECLARATION OF DEPENDENCY
"If the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the child's parent . . . under
the supervision of the social worker for a time period consistent with Section 301."(§ 360, subd. (b).) "Once the juvenile court finds jurisdiction under section 300, it must adjudicate the child a dependent unless the severity of the case warrants nothing more than" services under the Agency's informal supervision. (In re N.M. (2011) 197 Cal.App.4th 159, 171; In re Adam D., supra, 183 Cal.App.4th at p. 1259.) If, on the other hand, the court sees a need to supervise the matter, it declares dependency. (In re Adam D., supra, at p. 1259.) When the court makes an order for informal services and supervision by the Agency under section 360, subdivision (b), it has no authority to oversee the case or evaluate the progress the family makes in services unless the Agency successfully petitions the court. (§§ 360, subd. (c), 332; In re Adam D., supra, at pp. 1259-1260.) Whether to proceed under section 360, subdivision (b) is within the court's "broad discretion to determine what would best serve and protect the child's interest . . . . [Citation.]" (In re N.M., supra, at p. 171.) There was no abuse of discretion in the instant case.
Section 301 authorizes voluntary services for six to 12 months. (§§ 301, 16506, 16507.3; In re Adam D. (2010) 183 Cal.App.4th 1250, 1259.)
After reporting Erick's violence to the police on August 21, 2010, Maria made contradictory statements and claimed her initial report was exaggerated or false. On August 21 she told a police officer her lower back was sore and tender to the touch because Erick had dragged her over the threshold. On August 24 Maria told a police detective her back pain was caused by menstruation. Maria also told the detective she was not certain Erick had caused all of her bruises. Maria steadfastly maintained she had not been holding Erick, Jr., during the August 21 violence, contrary to her original report, and testified she never told the police she had been holding Erick, Jr. On August 21 Maria reported Erick had choked her in the past. On August 26 she said he had grabbed her by the shoulders in the past, but had not choked her. At trial, Maria testified there was no past domestic violence and also testified there was a previous incident of domestic violence in which Erick grabbed her arm or shoulder, but did not hurt or choke her.
The court found that Maria's "first statements to the police officers [were] more credible."
Maria said she earned an Associate of Arts degree in child development around 2009 and had been working as a HeadStart teacher since 2006. She was a mandated reporter of child abuse and testified she understood the importance of reporting information to the police accurately.
Around 2007 Erick was arrested for domestic violence but not prosecuted.
Maria also made conflicting statements concerning Erick's drug involvement. On August 21 she told the police he was selling drugs and had been using heroin for about one year. On August 24 Maria denied knowing Erick used or sold drugs and did not remember telling the police he did. On August 26 Maria denied any knowledge of Erick's substance abuse and of the drugs and related material in his home. At trial she testified she learned of his substance abuse the day he was arrested, but she did not believe he had ever sold drugs. Maria testified she believed Erick no longer used drugs and then testified she did not believe he had ever used drugs.
On August 26, 2010, a social worker developed a safety plan with Maria and offered her voluntary services. Maria agreed to cease contact with Erick and obtain a restraining order against him. At a meeting with the social worker on September 15, Maria was accompanied by Erick. Maria said she had not sought a restraining order because she thought it would make Erick continue using drugs, and she did not believe he would hurt her. On December 8 Erick was present at Maria's first therapy appointment, although Maria understood that at the outset the therapy was to be individual, not conjoint. At trial Maria testified she continued to have contact with Erick, both in-person and by telephone.
Police personnel had also advised Maria to seek a restraining order.
By the time of the dispositional hearing, Maria had made some progress. She testified Erick's violence and drug involvement could have a negative impact on Erick, Jr., emotionally and physically. She accepted responsibility for placing Erick, Jr., at risk and testified she had not allowed Erick to have contact with him since August 21, 2010. Maria had completed all required services, including a parenting class, a domestic violence class and domestic violence support groups. She continued to attend her domestic violence program and attended Narcotics Anonymous (NA) meetings.
Maria testified she was also willing to continue with parenting classes and planned to continue attending therapy.
Maria, however, was unable to apply what she had learned to her own situation. She maintained contact with Erick and had not obtained a restraining order, in violation of the voluntary services contract. She testified she did not believe Erick posed a risk to her safety and did not know whether she was willing to obtain a restraining order against him.
During closing argument, Maria's counsel mentioned the possibility of a "no negative contact order." The court asked counsel, "Why not a restraining order?" Counsel conferred with Maria, then told the court that Maria was "willing to get a restraining order if that's what it would take to get her child back into her care."
The social worker believed Maria was unable to protect Erick, Jr., from Erick's drug use and from domestic violence, and court oversight was necessary. Maria took Erick, Jr., to Erick's home where drugs were present, including drugs packaged in multi-colored balloons, which would be attractive to children. Maria minimized the violence and did not believe there was a risk of further violence. The social worker believed Maria needed to obtain a restraining order and needed more domestic violence classes, therapy and, at some point, conjoint therapy with Erick.
By the time of the hearing, Erick was in a methadone program and attending parenting and domestic violence classes.
For the above reasons, the court did not abuse its discretion by declaring Erick, Jr., a dependent.
REMOVAL AND SUPERVISED VISITATION
In light of the July 2011 order placing Erick, Jr., with Maria, her challenge to the December 2010 orders for removal and supervised visits is moot.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.