Opinion
A151280
04-12-2018
In re B.C., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. B.C., SR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD-02785301)
B.C., Sr. (Father), father of 10-year-old B.C., appeals from the juvenile court's orders sustaining the allegations in a petition filed under Welfare and Institutions Code section 300, subdivision (b), removing B.C. from Father's care, placing B.C. in the home of his mother (Mother), and terminating juvenile court jurisdiction. Father contends (1) the court erred when it terminated juvenile court jurisdiction without making required findings, (2) the court erred when it terminated its jurisdiction and dismissed the case, and (3) ineffective assistance of counsel requires reversal. We shall affirm the juvenile court's orders.
Further statutory references will be to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural history underlying this matter is known to the parties and we will not extensively restate it here or in the Discussion, post, except to the extent it is relevant to the issues raised on appeal.
On February 22, 2017, the Alameda County Social Services Agency (Agency) filed a petition, pursuant to subdivisions (b) and (g) of section 300, alleging that Father was physically abusive to B.C.; that he had witnessed Father physically assaulting his live-in girlfriend, who B.C. considered his mother; and that Mother's whereabouts and interest or ability to provide responsible care was unknown. On February 24, the juvenile court ordered B.C. detained.
Amended allegations were subsequently sustained on May 4, 2017, pursuant to section 300, subdivision (b):
"b-1. The father is physically abusive to the minor, to wit:
"a. On 2/16/17 the minor was observed to have a slight swelling to his cheek, resulting from being slapped many times.
"b. When the father becomes angry with the minor he shows rageful behavior, in that the father threw the family's television on the floor.
"c. The minor has witnessed his father being physically assaultive to his father's live-in girlfriend, whom the minor considers his mother."
The March 8, 2017 jurisdiction report described a significant history of child welfare referrals related to Father's allegedly controlling and violent behavior toward his live-in girlfriend and B.C., with eight referrals received by the Agency between 2013 and December 2016. Three 2016 referrals were under investigation at the time of B.C.'s removal. Father denied that there was any domestic violence in the home and was upset to learn that B.C. had said he wanted a " 'very very very very long break' from his father, and doesn't want to see him or talk to him."
The social worker had spoken with Mother, who said there was a history of domestic violence between her and Father, which was why she had not been in B.C.'s life on a daily basis. She had last seen B.C. at "Christmastime in 2016." Before that, she visited with him approximately every other month. Mother was self-employed as a business writer and her fiancé worked as a drug treatment counselor. She stated that she would like to have custody of B.C. and could afford to take him into her home. B.C. told the social worker that he did not want any contact with Father and said he wanted Father to stay in jail because, since B.C. was little, Father "hits and tortures [his live-in girlfriend], he won't let us go anywhere . . . . I am slapped a lot. . . ."
The social worker concluded that "[i]t appears, from the referral history and police reports alone, that [Father] . . . is chronically physically abusive to the minor and domestically violent with his partner, and that the minor is exposed to such domestic violence in the household." The Agency was currently evaluating Mother, who had requested that B.C. be released to her care.
In a March 28, 2017 disposition report, the Agency recommended that B.C. be released to Mother's care, that custody orders be made, and that the matter be dismissed. Mother and B.C. agreed with this recommendation; Father did not. The social worker believed that Father was committed to B.C., but that he was physically abusive to B.C. when he disciplined him and that he had also been violent with his partner. B.C. had continued to express fear of contact with Father, but said he did want to see Father's girlfriend. He also said he wanted to live in the home of Mother and her fiancé.
In a May 8, 2017 addendum report, the social worker reported that Mother had been acting "as a willing and able parent," including during overnight visits. She had been unaware of Father's abuse of B.C. He stated that he did not want to see or speak to Father because he gets a " 'sad feeling' " due to the fact that Father had been hurting him since he was little. B.C. said " 'great' " in response to how he felt about living with Mother. He said he had never disclosed the physical abuse to her.
At the conclusion of the May 8, 2017 contested jurisdictional/dispositional hearing, the court found the allegations in the amended petition true, declared B.C. a dependent of the juvenile court, and found by clear and convincing evidence that it would cause a substantial danger to B.C.'s safety to return him to Father's care. The court approved B.C.'s placement in Mother's home, granted her sole legal and physical custody, and terminated juvenile court jurisdiction.
On May 9, 2017, Father filed a notice of appeal.
DISCUSSION
Father contends the court erred when it placed B.C. with Mother and terminated juvenile court jurisdiction without first making findings required under section 361.2, subdivision (c). He further argues the court erred when it terminated its jurisdiction under section 361.2, subd. (a)(1), and that ineffective assistance of counsel also requires reversal.
I. Trial Court Background
At the May 8, 2017 contested jurisdictional/dispositional hearing, counsel for the Agency stated that the Agency's position was "that it would be detrimental at this time to force B.C. to have visits with his father. He's refusing to have visits. He's refusing to speak to his father. [¶] So at this point we would propose sole legal and sole physical [custody] to the mother, and the father can bring the matter back to Family Court at some point and ask for modification." Counsel for Mother and B.C. expressed agreement with the Agency's position.
The court responded that "it really boils down to what's in the best interest of the child for me. And so my issue with dismissal in this case is that I may not have all of that information. [¶] If B.C. were in therapy, or there was the opportunity to set up, for example, a therapeutic visit with dad, I would feel more comfortable with that. But because the recommendation is dismissal, it's difficult for me to make that decision as far as a custody order because I don't know, other than B.C. saying he doesn't want a visit with dad, actually that's in B.C.'s best interest, and if we could get to a point where there would be a type of visitation that would be appropriate. . . .
"I would be very inclined to have B.C. in the home of the mother for a period of time, and to get therapy and other things in place so we know what's going on with B.C. That's where I stand. The Agency can sway this. So can minor's counsel. But I think it's premature not knowing where B.C. is emotionally for me to dismiss a case like this. Specifically because B.C. has been with his dad for an extended period of time, the fact that he wants absolutely no contact with his father is something that I think needs to be vetted by a therapist. . . ." The court then stated that it believed that family maintenance services in the home of Mother would be appropriate, further explaining that B.C.'s placement with Mother "is working for B.C. and it's a healthy situation," "[b]ut I just want to be clear that I think it's a little soon to pull the plug based upon where B.C. is right now. I just don't think that's healthy for a nine-year-old not to get services to make sure that his position, he's rooted in it, and it's an appropriate position.".
Counsel for the Agency then stated that Mother was the non-offending parent and had "worked very well with the Agency. She is willing to provide individual therapy for her son. She's willing to do counseling herself. Our position is that there is no risk of harm. [Mother] is perfectly capable to parent her son, and the Agency does not need to be involved." The court responded that Mother and B.C. were both frightened of Father, but the court did not "know that [B.C.] is in a position where there's no emotional harm to him, substantial emotional harm to him if we dismiss this case. I just don't have enough information. . . . I just don't want to put the mother in a position either where she is ultimately responsible for trying to facilitate healing for [B.C.] that includes dealing with the dad. The Agency's better equipped to do that, especially now."
The court also stated, however, that "this is the type of case that I think potentially in a short period of time could just be dismissed."
Counsel for B.C. then noted that Mother was "totally willing to set up therapy," but that "it would be really helpful for the Agency to do that. . . . [A]nd I do think having eyes on this case a little bit longer could be the safest thing. . . . [¶] So I would support a family maintenance recommendation."
Following a short break, the court stated that it had just learned that on February 21, 2017, the criminal court had issued a criminal protective order to protect B.C. from Father: "And Judge Cartwright issued that order. [¶] Interestingly enough she did not check the box that is sometimes checked, No. 16 on the first page, which allows this court to modify the order for purposes of visitation. She did not check that box. She's very aware that she can, and she chose not to. And as a result of that, this court cannot modify this protective order. [¶] So if in fact the court is willing to follow the recommendations in the report after we have the hearing, I would have to issue a custody order as requested by the Agency with no visitation based upon the criminal protective order."
Following a paternity inquiry, the court elevated Father's status to presumed father.
After counsel for the Agency and counsel for B.C. submitted on both jurisdiction and disposition, Father's attorney said, "Again this is the first at least that I've heard of the criminal protective order. . . ." The court observed that the order indicated that Father was served in person with that order at the end of the criminal court hearing, "so that shouldn't be a surprise to you." Father's counsel responded that in light of the criminal protective order, "we seem to be a little bit out of options here. . . . So our remedy appears to be—at least most appears to be in a different court. That's very unfortunate for us, but that's going to be something that we have to accept."
The court further described the criminal protective order as providing that Father "can have no contact with [B.C.] . . . [a]nd as previously stated, it specifically says that I cannot modify that order."
At Father's request, we have ordered the record augmented to include the criminal protective order issued on February 21, 2017, by the Alameda County Superior Court, which states that it will expire on February 21, 2020. We have, however, declined Father's request to augment the record with postjudgment evidence.
The court then found the allegations in the amended petition true, declared B.C. a dependent of the juvenile court, found by clear and convincing evidence that it would cause a substantial danger to B.C.'s safety to return him to Father's care, approved B.C.'s placement in Mother's home, granted Mother sole legal and physical custody of B.C., and terminated juvenile court jurisdiction.
II. Legal Analysis
Section 361.2, subdivision (a), directs: "When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child."
If the court places the child with the previously noncustodial parent, it has three options: It may order that the parent become the legal and physical custodian of the child and terminate jurisdiction; it may order that the parent assume custody subject to the jurisdiction of the juvenile court and require a home visit within three months; or it may order that the parent assume custody subject to the jurisdiction of the juvenile court and order reunification services for the parent from whom the child is removed, or solely for the parent taking custody, to allow that parent to later retain custody without court supervision, or for both parents, with a determination at future review hearings as to which parent shall retain custody. (§ 361.2, subd. (b).) The court must make a finding in writing or on the record as to the "basis for its determination under subdivisions (a) and (b)." (§ 361.2, subd. (c).)
"In examining section 361.2, subdivisions (a) and (b), it is clear that the Legislature envisioned a two-step process: [U]nder subdivision (a), the court examines whether it would be detrimental to temporarily place a child with the nonoffending noncustodial parent; under subdivision (b), the court decides whether that placement should be permanent and whether the court's jurisdiction should be terminated." (In re Austin P. (2004) 118 Cal.App.4th 1124, 1131 (Austin P.).)
A. The Court's Failure to Make an Express Finding
Under Section 361.2 , Subdivision (c)
Father contends the court erred when it placed B.C. with Mother and dismissed the case without first making the express finding required by section 361.2, subdivision (c). Father acknowledges that his trial counsel did not object on this ground in the juvenile court. The Agency argues that Father has therefore forfeited the issue on appeal.
Dependency matters are not exempt from the rule that "a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court," the purpose of which "is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) While application of the forfeiture rule is not automatic, "the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.] Although an appellate court's discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters. 'Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.' [Citation.] Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. [Citation.]" (Ibid.)
We agree with the Agency that, in the circumstances of this case, Father has forfeited his claim that the court erred by failing to make a formal finding under subdivision (c) of section 361.2. (See In re S.B., supra, 32 Cal.4th at p. 1293.)
We also note that, although the court did not cite section 361.2, its oral statements and written findings tracked subdivisions (a) and (b) of that statute. The court initially found that placement of B.C. with Mother, the formerly noncustodial parent, was "working for [B.C.] and it's a healthy situation," "[b]ut I just want to be clear that I think it's a little soon to pull the plug based upon where B.C. is right now." The court planned to place B.C. in Mother's home with family maintenance services while the Agency facilitated therapy for B.C. to determine if therapeutic visitation with Father would be appropriate. The court thus weighed whether termination of jurisdiction was appropriate or whether continued supervision was necessary. (See § 361.2, subd. (a) & (b)(3); Austin P., supra, 118 Cal.App.4th at pp. 1128-1129 ["the court may not terminate jurisdiction until it analyzes whether ongoing supervision of the child is necessary"]; see also In re J.S. (2011) 196 Cal.App.4th 1069, 1079 [juvenile court's failure to make a formal finding in support of termination of jurisdiction was harmless where "court addressed itself to that question, which was the predominant subject of hearings over portions of three days"].)
Once the court learned of the criminal protective order, however, it ordered sole physical and legal custody of B.C. to Mother, the previously non-custodial parent; denied Father visitation; and terminated juvenile court jurisdiction. (See § 361.2, subd. (b)(1).) Father has not shown any failure on the part of the juvenile court to base its findings and orders on the requirements of section 361.2, regardless of its failure to specifically refer to the statute. (See § 361.2, subd. (c); compare In re Abram L. (2013) 219 Cal.App.4th 452, 461-462 [where juvenile court failed to refer to section 361.2 or use operative language in subdivision (a) regarding standard for denying noncustodial parent custody of his children, appellate court declined to hold that father, "a nonoffending and noncustodial parent, forfeited his arguments regarding his constitutionally protected interest in assuming physical custody over his children"].)
B. The Court's Termination of Jurisdiction
Appellant does not challenge the placement of B.C. with Mother, but does contend the juvenile court erred when it terminated its jurisdiction.
We review the court's decision to terminate jurisdiction for abuse of discretion. (In re A.J. (2013) 214 Cal.App.4th 525, 535, fn. 7 (A.J.).) The court's factual findings are reviewed for substantial evidence. (Ibid.)
Here, the court's sole reason for the plan to place B.C. with Mother with family maintenance services, rather than terminating juvenile court jurisdiction, was to give B.C. the opportunity to explore, through participation in therapy and/or therapeutic visitation, whether he in fact wanted no contact with Father, as he had repeatedly stated. Although Mother had expressed the intent to find a therapist for B.C., the court believed the Agency was better equipped to facilitate and supervise the process. The court also believed "this [was] the type of case that . . . potentially in a short period of time could just be dismissed."
Once the court learned of the criminal protective order, which prohibited Father from having any contact with B.C. for three years, the court's only reason for maintaining juvenile court jurisdiction—to encourage him to consider ongoing contact with Father—was no longer applicable. The court then reasonably terminated its jurisdiction, which allowed B.C. to have permanency in a stable home with Mother, the formerly noncustodial parent. There was no abuse of discretion. (See A.J., supra, 214 Cal.App.4th at p. 535, fn. 7; compare Austin P., supra, 118 Cal.App.4th at p. 1134.)
This case is distinguishable from Austin P., cited by Father, in which the appellate court affirmed the juvenile court's refusal to terminate jurisdiction for a number of reasons, including the social service's agency's belief that it should monitor the child's transition to the father because he had had only sporadic contact with the father, the juvenile court wanted to monitor the conflict among the adults, and the social worker had a number of concerns that could only be addressed if the dependency remained open, including that the child needed therapy, the father and his wife had not taken steps to protect the child despite being aware that the mother had physically abused and neglected him, and although the child was happy living with the father, the mother was "the only parental figure he had ever known," he was more bonded with her and wanted to reunify with her, and she was making good progress with her reunification plan. (Austin P., supra, 118 Cal.App.4th at p. 1134.)
Father nonetheless asserts that "it was an abuse of discretion to not continue jurisdiction even with the newly discovered evidence of the [criminal protective order]. It is unclear why the court was so incurious as to why the criminal court judge had failed to check the relevant box. But, given the force of the court's own argument for a family maintenance plan, the evidence did not support the failure to establish such a plan, or at the least, to continue the matter in order to determine if there might be an avenue for doing so."
When the court was first apprised, mid-hearing, of the existence of the criminal restraining order, it observed that Judge Cartwright, who had issued that order, did not check the box that would allow "this court to modify the order for purposes of visitation. She did not check that box. She's very aware that she can, and she chose not to." The court thus made plain that it had confidence in the criminal court judge's understanding that, by not checking box No. 16, the juvenile court would be unable to modify the stay away order. The court acted well within its discretion in accepting Judge Cartwright's determination and failing to sua sponte order a continuance for further investigation. (See A.J., supra, 214 Cal.App.4th at p. 535, fn. 7.) Father's argument to the contrary is based on speculation.
For the same reason, Father's claim of ineffective assistance of counsel, which is based on trial counsel's failure to request a continuance to give counsel the opportunity to investigate the circumstances surrounding the issuance of the criminal protective order, cannot succeed. (See Strickland v. Washington (1984) 466 U.S. 668, 694, 697; In re Athena P. (2002) 103 Cal.App.4th 617, 628.)
Finally, we observe that the court's termination of its jurisdiction does not mean that Father is without any options for pursuing future contact with B.C., should that be appropriate. He will have the opportunity to address any questions related to the criminal protective order with the criminal court and future visitation related issues with the family court.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.