Opinion
A148065
01-31-2017
In re N.W., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.A., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. OJ14023862) MEMORANDUM OPINION
We resolve this case by a memorandum opinion pursuant to California Rules of Court, Standard 8.1, which provides that a memorandum opinion is appropriate when an appeal "rais[es] factual issues that are determined by the substantial evidence rule."
A.A., (Mother), mother of three-year-old N.W., appeals from the juvenile court's order continuing jurisdiction and maintaining N.W. in the respective homes of Mother, and N.W.'s father, J.J. (Father), with family maintenance services to both parents. Mother contends there was insufficient evidence to support the court's continuance of jurisdiction. We reject the contention and affirm the order.
On October 30, 2014, the juvenile court sustained a dependency petition after the alleged father, J.W., verbally abused N.W. and willfully withheld adequate nutrition from him, causing him to suffer from malnutrition and starvation. J.W. had a history of domestic violence with Mother and had attacked Mother in February 2014, leaving her with serious injuries including a concussion, broken ribs, and bruises. The Solano County juvenile court took jurisdiction over N.W., then transferred the case to Alameda County based on the Mother's residence.
At the time, Mother was a nonminor dependent of Alameda County. She first entered foster care at the age of seven months and had been in about 25 different placements throughout her life.
In its dispositional report, Alameda County Social Services Agency (the Agency) recommended that N.W. be declared a dependent and released to Mother with family maintenance services. A paternity test showed J.W. was not the biological father. A social worker reported that Mother was resistant to outside intervention; even though N.W. was eligible for early intervention services for a speech delay, Mother did not engage in those services and the case was closed.
An Agency child welfare worker who met with N.W. at his foster mother's home described him as an easy toddler who played well with other children but took some time to warm up to adults. He used only a few words and got frustrated when he was not understood. Mother reported she had everything she needed to care for N.W. but was not comfortable having him live with her in light of problems she was having with her roommate.
Several weeks later, Mother found a new placement with no roommates. The Agency assessed the home and opined N.W. would be safe there as long as Mother could meet his medical and other needs with her limited transportation resources. The Agency expressed concern that Mother did not want N.W. to receive services for his speech delay and that she insisted on working with him once he was in her care.
At a January 12, 2015 dispositional hearing, the juvenile court found J.W. was not N.W.'s biological father and excused him. J.J., an alleged father, appeared for the first time; the court appointed counsel for him and ordered a paternity test. The court declared N.W. a dependent and ordered family maintenance services for Mother. At an interim hearing several weeks later, J.J. was confirmed to be the biological father. The court elevated J.J. (Father) to presumed father status and ordered child welfare services for him.
In a June 16, 2015 status review report, the Agency recommended the dependency to continue, with family maintenance services to Mother and child welfare services to Father. Mother and N.W. continued to live in an appropriate home, where Mother's boyfriend often stayed overnight. Mother was reluctant to allow Father to have a relationship with N.W.; she said Father had raped her, exposed N.W. to pornography, and did not truly care about N.W.
According to the status review report, Mother was taking N.W. to his appointments and had scheduled a developmental evaluation for him. She was in the process of resuming individual therapy and starting a GED program. Father lived in an appropriate home and appeared proud and excited to develop a bond with N.W. His five supervised visits with N.W. had gone well, and he was committed to ensuring N.W.'s safety and well-being. N.W. appeared clean, healthy, expressive, and engaged. The Agency opined it would nevertheless be detrimental to dismiss the dependency because Mother needed to heal through participation in individual therapy and establish greater stability as a parent. Mother's anxiety and the conflict regarding Father's relationship with N.W. also needed to be addressed and resolved.
On June 16, 2015, the parties submitted on the report and the juvenile court adopted the Agency's recommendations to continue the dependency. The court issued a visitation order allowing Father unsupervised visits Mondays and Wednesdays and every other weekend.
In an interim hearing report dated September 8, 2015, the Agency reported that Father's visits with N.W. were going well but that the visitation exchanges had been problematic. Father reported that on July 20, 2015, Mother was yelling and trying to pull on N.W. On August 13, 2015, Mother reported that N.W. cried uncontrollably after a visit with Father; she felt N.W. was not getting appropriate nutrition when he is with Father. On August 17, 2015, Mother reported that N.W.'s left eye was bruised and that N.W. said Father's dog had caused it. Father said the dog is never inside the home. A doctor who examined the eye said the mark could be an insect bite or a scratch.
On August 4, 2015, N.W. was assessed for speech delays and it was determined he was not eligible for speech and language therapy. The parents were attending separate dyadic therapy sessions with N.W. The therapist reported that both parents were doing well in regards to their individual relationship with N.W., but that there were concerns about the discord between the parents. The Agency recommended that visitation be modified such that N.W. spend one week at a time with each parent.
On August 28, 2015, Father filed a petition under Welfare and Institutions Code, section 388 (388 petition), requesting that the juvenile court order 50/50 custody, with family maintenance services to both parents. The court scheduled a hearing for the 388 petition and temporarily modified the visitation orders so that the parents would care for N.W. on alternate weeks.
All further statutory references are to the Welfare and Institutions Code. --------
In its section 388 report, the Agency recommended that N.W. be placed in the respective homes of Mother and Father, with family maintenance services to both parents. N.W. had been visiting Father every other week and was doing well. The exchanges of custody continued to be problematic and there were concerns regarding Mother's behavior. On three different occasions, even after being asked to stop, Mother repeatedly said in front of N.W. that Father had raped her. On two occasions, Mother violated the court order that prohibited her from bringing her boyfriend to the custody exchange. Mother told the Agency that N.W. is not to call Father "Daddy" because that is the term reserved for Mother's boyfriend. Mother falsely accused Father of physically abusing N.W. and attempted to interfere with N.W.'s childcare arrangements on the days Father was scheduled to pick him up. During Mother's visits with N.W., Mother was agitated, angry, loud, or upset and crying. The Agency recommended that Mother complete a psychological evaluation and a parenting course.
At the hearing on Father's 388 petition, all parties submitted on the Agency reports and the juvenile court granted the 388 petition.
In a December 15, 2015 status review report, the Agency recommended that the dependency continue due to the high conflict between the parents, the history of N.W.'s abuse, and Mother's own history of trauma, all of which placed N.W. at continued risk of harm. Mother had recently given birth to N.W.'s half-sibling. She cared for N.W. every other week but needed continued education and coaching to improve her parenting skills. The child welfare worker observed that Mother and N.W. had interactions that lacked emotionality and empathy. Mother spent a significant amount of time during visits complaining about the Agency and Father, and repeatedly attempted to alienate N.W. from Father. She was complying with some aspects of her case plan but needed to complete a parenting class, improve her attitude, and refrain from attempting to alienate N.W. from Father. Mother's therapist was concerned about the parents' inability to co-parent and said she hoped they would engage in co-parenting counseling.
Mother requested a contested hearing. In a memorandum, the Agency reported that a child welfare worker had met with N.W. in the parents' respective homes and found his language had not developed to the point he could be understood. Mother said she and Father communicated all the time and worked cooperatively, and that both she and Father wanted the dependency to be dismissed. Father did not agree that his relationship with Mother was cordial or that they were in agreement on any basic co-parenting issues; he asked for the dependency to continue.
At the contested hearing on February 16, 2016, Mother's counsel stated, "I am going to withdraw my request for a contest today and go another route." Counsel requested a new evaluation from a speech therapist, then submitted the matter. The juvenile court noted the parents had very different points of view of their relationship and noted it was reasonable for Father to request services given that he was "newer to this than Mom is." The court expressed concern regarding N.W.'s delayed speech, the ability of his parents to ensure he receives adequate care, and the conflict between the parents and its effect on N.W. Mother's counsel stated in response, "I'm not going to argue against your ultimate . . . decision as I said before." The court continued the dependency, finding that conditions existed justifying initial assumption of jurisdiction, or that the conditions were likely to exist if supervision was withdrawn.
Mother contends there was insufficient evidence to support the juvenile court's continuance of jurisdiction. She asserts that none of the conditions that existed when the petition was filed—e.g., malnutrition and starvation—continued to exist and that there was no evidence she placed N.W. at risk or that she had failed to meet N.W.'s medical or speech therapy needs. Assuming, without deciding, Mother did not forfeit the issue by withdrawing her contest at the hearing and essentially agreeing to continued jurisdiction, we conclude her contention is without merit.
Section 364, subdivision (c), provides the juvenile court "shall terminate its jurisdiction unless the social worker or [the] department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn." " 'The language of section 364 does not literally require that the precise conditions for assuming jurisdiction under section 300 in the first place must still exist—rather that conditions exist that "would justify initial assumption of jurisdiction.' " (In re J.F. (2014) 228 Cal.App.4th 202, 209-210.) Orders made under section 364 are reviewed for substantial evidence. (In re N.S. (2002) 97 Cal.App.4th 167, 172.)
Here, there was substantial evidence to support the juvenile court's order. Although the specific conditions of malnutrition and starvation that brought N.W. into protective custody no longer existed, other issues arose, including the high conflict between the parents and their inability to co-parent, Mother's alienation of N.W. from Father, and her lack of cooperation and progress in her case plan. She violated court orders by bringing her boyfriend to visitation exchanges, told N.W. not to refer to Father as "Daddy," interfered with Father's custodial time with N.W., falsely accused Father of physically abusing N.W., and repeatedly referred to Father as a rapist in front of N.W. despite being told not to do so. Mother was often agitated, angry, loud, and crying during visits, and spent a significant amount of visitation time complaining to the child welfare worker about the Agency and Father. She had not completed the parenting education and coaching course to which she had been referred. There were continued concerns that N.W.'s speech issues were not being fully addressed, and the child welfare worker also expressed concern about Mother's interactions with N.W. In light of the parents' discord, Mother's downplaying of the discord, her failure to complete a parenting course, coupled with N.W.'s developmental needs, it was reasonable for the court to find that continued jurisdiction was necessary.
The order is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Siggins, J.