Opinion
F061744 Super. Ct. No. 09CEJ300324
08-15-2011
In re AARON G., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. B.G., JR., Defendant and Appellant.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from orders of the Superior Court of Fresno County. Jane A. Cardoza, Judge.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
B.G., Jr. (father) appeals from the dispositional orders declaring his son Aaron a dependent, denying placement of Aaron with him as a noncustodial parent, and giving him reunification services consisting solely of supervised visitation. Father claims the juvenile court erred in (1) denying his request for placement of Aaron under Welfare and Institutions Code section 361.2, (2) failing to order additional reunification services, and (3) ordering that visitation be supervised. We affirm the orders.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Detention and Jurisdiction
In October 2009, then seven-year-old Aaron was living with eight other people in a recreational vehicle (RV) that was parked illegally in a field. The other occupants of the RV were: his two half-sisters, four-year-old T.H. and two-year-old K.H. (collectively the girls or sisters); Eleanor B. (mother), who is the mother of Aaron and the girls; the girls' father, R.H.; the children's paternal grandparents, B.G., Sr. and Gloria G.; and Gloria's son and his girlfriend.
Gloria G. is R.H.'s biological mother and is married to B.G., Jr.'s biological father, B.G., Sr.. B.G., Jr. and R.H. are stepbrothers.
The children came to the attention of the Merced County Human Services Agency (Agency) on October 9, 2009, when a Merced County Sheriff's Deputy, who was investigating the RV's presence in the field, requested that a social worker come to the location after discovering K. there with Gloria living in squalid conditions. The RV had no running water or electricity, and there was exposed electrical wiring on and underneath the RV accessible to a child.
When the social worker arrived, mother and R.H. were sitting in the RV with the children. The property surrounding the RV was littered with debris, consisting of items hazardous to the children's health and safety, as well as human and animal feces and urine. Gloria's son was arrested for being under the influence of a controlled substance; his girlfriend was also under the influence of a controlled substance.
The carpet in the RV's bedroom was stained and dirty. The bed was unkempt and there were mold spores and dead flies on the ceiling. A plate of food in the bedroom had maggots on it. The RV's bathtub was overflowing with dirty clothes, the sink did not work, and the toilet, which Gloria said had not worked in some time, was partially filled and encrusted with human feces. Dirty dishes were piled on the kitchen stove, which was very dirty and encrusted with oil and food splatters. The refrigerator was empty and not working. A portable toilet was in a tent outside the RV. Mother claimed the paternal grandparents used the toilet inside the RV. The only food the social worker found was two pieces of fried chicken, which were kept in an ice chest.
Mother told the deputy she had just moved to California from Illinois on September 15, 2009, and had been staying in the RV for a week, although the deputy noted in his report that he had noticed the RV parked in the field a month before. Mother claimed their usual residence was in Selma, California, and they came there to help take care of B.G., Sr. Mother said she and R.H. were not working at that time. R.H. told the social worker and deputy the last time he went food shopping with mother was over a month ago. Mother said she brought jugs of water to the RV to bathe the children twice weekly, and she went to Selma to wash their clothes.
The deputy arrested mother and R.H. for felony child endangerment and detained the children, placing them in the social worker's care. Mother denied that any of the children had medical conditions or allergies. While transporting the children to a foster home, it was apparent to the social worker, due to the children's strong body odor, that they had not been bathed in a long time. All three children had smudged dirt on their faces, arms, hands and legs. They were covered with mosquito bites, and the girls appeared to have colds.
Father, who lives in Kingman, Arizona, told the social worker he had been trying to find mother and Aaron since the past May or June, and had filed a missing person's report several months before with the Fresno County Sheriff's Department in an effort to locate them. Father had not seen Aaron in over a year due to mother's transient lifestyle and lack of communication. He was not aware of any custody order that was in place and said he was in the process of filing paperwork to obtain custody of Aaron. Father said Aaron had asthma, for which he was taking medication, used an inhaler and did breathing treatments, and he was allergic to everything. Father signed a declaration of paternity on October 12, 2009, which reflects that his paternity of Aaron had been established on February 12, 2003.
The Agency filed a petition alleging that the children came within the provisions of section 300, subdivision (b) (failure to protect), as they had suffered, or were at substantial risk of suffering, serious physical harm or illness due to the willful or negligent failure of the parent to provide them with adequate food, clothing, shelter or medical treatment, and the parent's inability to provide regular care due to the parent's substance abuse, based on the RV's condition, the arrest of mother and R.H. for felony child endangerment, mother's denial that any of the children had medical conditions or allergies when father reported that Aaron had asthma and allergies, and father's filing of a missing person's report and statement that he had not seen Aaron for over a year due to mother's transient lifestyle and lack of communication with father. The children were detained and placed together in foster care.
Mother told a social worker she had been homeless, they had been in the RV only a few days, and they did not really live in the RV, but had only come to help clean it out. Mother tested positive for marijuana. She denied smoking it around the children, and said she hid her drugs and paraphernalia outside. Mother said that father would call her at 11 p.m. to speak to Aaron, but she would not let him because it was too late, father left her dirty messages and he turned her into CPS. Mother did not have a criminal history, but she had four other child welfare referrals from Madera and Fresno Counties between April 28, 2005 and April 22, 2009, all of which either were unfounded or evaluated out. Mother had a history of methamphetamine use and, at T.'s birth in 2005, mother, but not T., tested positive for methamphetamines. A referral of this positive drug test was investigated and found inconclusive, although mother was referred to a parenting class.
R.H. told a social worker that the child endangerment charges against him had been dropped. While he first claimed they took the RV out of storage in February or March and had not had a chance to clean it up, he later stated they took it out of storage the week before and had only been living in it for about a week. According to R.H., father had filed false police reports before. R.H. tested positive for marijuana and admitted he had been smoking marijuana once or twice a week for 30 years. He claimed he kept his drugs and paraphernalia locked in a safe and did not smoke when the children were home. R.H. had a criminal history including a June 2000 misdemeanor conviction for use of a controlled substance and a February 1996 misdemeanor conviction for force with a deadly weapon, not a firearm. R.H. has an older daughter, A.H. (the girls' half-sister), in long term foster care in Kern County due, in part, to R.H.'s drug use.
Father told a social worker in December 2009, that he had been trying to get Aaron from mother for over a year, as he did not want Aaron in "that environment," and he had tried to file custody papers, but did not understand how to fill them out. When asked what he meant by "that environment," father said he did not know where Aaron was, and every time he called, mother and his father, B.G., Sr., "kept lying to me about where they were at," telling him Aaron was in Illinois. Father said he tried to get CPS involved when mother would not let him talk to Aaron but she said she would "come out here and kick my ass if I made another CPS report." Father did not have a criminal or child welfare history.
On December 10, 2009, a jurisdictional hearing was held in Merced Superior Court, at which father appeared telephonically. The juvenile court found the petition's allegations true and that the children came within the provisions of section 300, subdivision (b). Mother, R.H., B.G., Sr. and Gloria had moved into a rental home in Fresno, which B.G., Sr. leased for one year. Consequently, the Merced Superior Court found that Fresno County was the children's legal residence and transferred the dependency case to Fresno County for a transfer-in hearing and disposition. The Fresno Superior Court accepted transfer of the dependency case on January 8, 2010.
The Disposition Reports
The dispositional hearing originally scheduled for February 26, 2010 was continued numerous times. A contested hearing eventually was held in November 2010. During this time period, the Department filed seven reports for the dispositional hearing.
All subsequent dates are to the year 2010, unless otherwise stated.
In its initial report, the Department recommended the children be adjudged dependents, mother and father be provided family reunification services, and R.H. be denied services based on his failure to reunify with A.H. and his history of drug use. The services recommended for both mother and father included parenting classes, domestic violence, substance abuse and mental health evaluations and any recommended treatment, and random drug testing. Mother had been visiting the children once a week for two hours; the visits were going well and the children appeared comfortable with her. The children were placed together in a Fresno County foster home.
In February, father requested placement of Aaron with him. He told the social worker he had filed a missing person's report in Fresno County months before Aaron was detained. In a March report, the social worker noted that Aaron stated he wanted "to live with my mom at my own house." Although Aaron previously told a social worker he was not going to school, the social worker confirmed that before being detained, Aaron attended an elementary school in Merced, where he was in first grade and received special education services based on mental retardation. His foster mother was going to enroll him in a school in Fresno County. In March, the court ordered a Central Valley Regional Center (CVRC) assessment of Aaron, and gave the Department discretion to move mother's visitation from supervised to unsupervised liberal visits at the inpatient treatment program in which mother was participating.
In two reports prepared for hearings in April and May, the Department recommended the court deny father's request for placement of Aaron. Reasons for the recommendation included that the two did not have an established relationship, it would be detrimental to separate Aaron from his sisters, with whom he was placed, and Aaron required CVRC services.
During a conversation with a social worker on March 26, father stated he was more than willing to have Aaron come and live with him, and he would comply with all court orders to get his son into his care. Father had not seen Aaron for over a year. When the social worker asked father whether he had ever had Aaron in his care, father responded that while he had not cared for him, he did supply diapers and food. Father stated he lived in a three bedroom house with his girlfriend and their two children. His youngest son has several disabilities, including seizures and cerebral palsy, which father takes care of by taking him to a hospital in Phoenix. When told that Aaron also has special needs, father responded he would not have a problem caring for two special needs children. Father does not work and receives social security insurance due to a learning disability, although his girlfriend works. The social worker spoke with mother, who stated that father had not been in Aaron's life consistently, and that R.H. had been the consistent male in Aaron's life and the one who provided for Aaron.
In an investigative report, an investigator stated that the children had been placed with a 76-year-old foster mother who lived alone. Aaron was enrolled in a special needs day program and was being assessed for CVRC services. The foster mother reported the children all had behavioral problems. The girls were often "at each other" and when Aaron was home, T. was "always fighting with him." The girls would fight and cuss. When the foster mother was changing K.'s diaper and cleaning her bottom, Aaron stated that was his "job." The Department was attempting to find a more suitable placement for the children after the foster mother admitted she was overwhelmed with caring for them.
The investigator attempted to speak with nearly eight-year-old Aaron, but he was difficult to understand and had a very limited vocabulary. Aaron told him he liked his "grandma," which he confirmed was his foster mother. Aaron seemed confused when the investigator asked Aaron if he had seen his father. When the investigator asked "if he had seen his father B[] G[]," Aaron replied he had seen "'Bernie.'" Aaron nodded his head up and down after the investigator asked if Bernie was his dad. The investigator ended the interview when Aaron appeared confused by his attempts to ask questions about R.H. Aaron's teacher stated that Aaron's academic level was between that of a kindergartener and low first-grader.
A social worker spoke with Aaron on May 4. Aaron knew his father's first name and said he liked his dad. Aaron said he did not talk to his dad on the telephone any more, but he wanted to have telephone calls with him and live with him. Aaron, however, also wanted to live with mother and R.H. Aaron was aware father lived in Arizona. Aaron's care provider was given father's telephone number so Aaron could call father. According to the social worker, father stated he was concerned mainly with Aaron's education and he wanted to obtain joint custody of Aaron so he could have input in Aaron's life. Father requested that Aaron be able to visit him and Aaron's half-brother, who he had never met, in Arizona. Father also said he was willing to come to California to visit Aaron.
While the Department had not been able to assess father's home and family in person, it did not have any immediate concerns regarding his ability to provide for Aaron's safety and physical well-being. It was concerned, however, that placement with father would be detrimental to Aaron's emotional well-being, as Aaron was bonded to mother and the girls, and it would be detrimental to sever those relationships. Noting Aaron's special needs, the social worker believed it would be in his best interest if father was introduced to him at a gradual pace, giving Aaron time to adjust to the changes in his life, especially since father had not been in Aaron's life since he was two years old and Aaron had only known his mother to be consistent in his life. The social worker stated that father had agreed to joint custody and family reunification continuing for mother, as well as visitation for him, and the Department recommended Aaron remain in California in foster care during the reunification process, with custody orders made upon dismissal of dependency.
In May, the court granted father supervised visits with Aaron if he traveled to California, with the Department to assess whether unsupervised visits were appropriate. The Department subsequently recommended father receive unsupervised visits, noting that he was speaking to Aaron by telephone. In June, the court gave the Department discretion to move father to unsupervised visits when he was in California on five court days' notice, with the Department to facilitate visitation in any way possible. Father's attorney noted that the Department had listed in its March 10 report "a litany of programs" he was supposed to be doing, but she did not see any basis for them, and the social worker told her it may have been an error. Father's attorney asked for new findings and orders so she could confirm what father should be doing, and the Department's attorney agreed to look into the matter.
Sometime over the summer, the Department came to believe that father no longer wanted placement of Aaron. In a report prepared for a September 8 hearing, the social worker noted father had indicated to the social worker who had previously been assigned to the case that it would be difficult for him to take over care of Aaron due to his other son, but he was interested in visiting Aaron. The social worker stated the children were very bonded to one another and it would appear detrimental to sever this strong sibling relationship by placing Aaron with father. Based on the belief that father was no longer interested in placement of Aaron, the Department no longer recommended family reunification services for father, although it did recommend supervised visits between the two in Fresno.
The Department, however, did recommend family reunification services for mother and R.H., and unsupervised visits between them and the children. The Department learned mother had four other children who were adopted in Illinois after she failed family reunification services there. While both mother and R.H. could be denied reunification services due to their failures to reunify with their other children, after review by a panel of social workers and their supervisors, the Department concluded it would be in the children's best interest for mother and R.H. to receive services, as they were complying with services and visiting consistently with the children, and the children appeared to have a strong bond and relationship with both of them.
In October, father's attorney requested the matter be set for trial. His attorney informed the court that he disputed the social worker's statements that he no longer wanted Aaron placed with him and he definitely was seeking placement and custody, as well as reunification services necessary to have Aaron returned to his care. The court made visitation orders in October, including that visits between Aaron and father be supervised by the Department or an approved agency. Father's attorney responded: "The Court just ordered supervised visits for my client, which I think is the existing order, discretion for unsupervised, but that's okay. I do know that he has been having telephone contact, and I don't believe that that's supervised by the social worker. My belief is that it's supervised by the care provider. So, I just am asking for the discretion for that third party supervision for telephonic contact." The court then authorized telephonic contact between father and Aaron to be supervised by the Department or an approved third party.
The Department again recommended father's request for placement of Aaron be denied and that he receive reunification services. While father was a non-offending, noncustodial parent, the social worker believed it would not be in Aaron's best interest to place him with father. While father lived with Aaron and mother until Aaron was three years old, father admitted his last contact with Aaron was in 2008, when Aaron was six. The social worker opined it would be detrimental to sever Aaron's relationship with his sisters, as they were placed together, noting it was unlikely regular sibling visits would occur if Aaron was placed with father since he apparently did not visit California often, and it would not be in Aaron's best interest to sever his relationship with mother, with whom he was bonded. Given the recent changes in Aaron's life, including being removed from mother and R.H., entering foster care, having three different foster care placements in the last year, and attending a new school, the social worker believed it would be in Aaron's best interest for father to be introduced to him at a gradual pace.
Aaron was receiving CVRC services and had been referred for Intensive Therapeutic Foster Care (ITFC) services. He completed a mental health assessment in July. The therapist who completed that assessment noted he was a very active child who could not sit still, was easily distracted and impulsive, cried when frustrated, had few coping or social skills and no recognition of personal space, hit his younger sister, daydreamed, lied and was teased a lot at school. He seemed to be soothing his anxiousness with overeating when stressed. The therapist believed Aaron needed to be connected to CVRC so it could help him with behavioral interventions and repetition so he could become as high functioning as possible. While the therapist had recommended Aaron receive therapy at CVRC, CVRC confirmed it does not provide individual therapy. Accordingly, the social worker had contacted another organization concerning therapy. The social worker also stated that Aaron was receiving ITFC services consisting of weekly meetings with a counselor to work on behavioral issues, as well as services at CVRC, as he had been diagnosed with mild mental retardation and ADHD. Aaron most likely would remain a CVRC client during his lifetime.
The Department did not know if the services Aaron was receiving, or their equivalent, were available in Arizona. The social worker noted that father had never attempted to file for custody of Aaron, and that he did not have contact with Aaron from when he was three years old until he was six. Father and Aaron were talking on the telephone and there were no issues of concern. Mother had been cooperative with her case plan, there was a strong likelihood she would reunify with her children, and she strongly desired Aaron be returned to her care. Accordingly, the Department recommended the court deny father's request for placement of Aaron.
The Dispositional Hearing
On November 3, father's attorney filed an issue statement submitting the following issues for contest: (1) placement of Aaron with father, as there was insufficient evidence to show such placement would be detrimental to Aaron's safety, protection or physical or emotional well-being; and (2) if Aaron was not placed with father, father's reunification plan should not include participation in parenting classes or a mental health evaluation as there was no nexus between those requirements and the reason placement would be denied or the reasons Aaron became involved with the Department.
On November 17, father appeared in court for the contested dispositional hearing. The Department's attorney stated there were seven reports before the court, and informed the court that while the Department recommended reunification services for father, there was no basis to require him to participate in a parenting course or mental health evaluation. The Department asked the court to find it would be detrimental to place Aaron with father and to give father reunification services consisting solely of visitation, with the hope that eventually there would be joint physical and legal custody.
Father testified that he lived with mother when Aaron was born. They separated around 2005, when Aaron was three or four years old, because she cheated with his stepbrother, and they mutually decided that father would move out and Aaron remain with mother. This was the last time Aaron lived with him. Although he knew mother was using drugs, he felt she was capable of taking care of Aaron. Father moved to Arizona in August 2007, where he currently resides.
Between 2005 and 2007, father continued to live in Fresno, where mother and Aaron also lived. During that period, father visited Aaron once or twice a week for two to three hours, and every once in a while took Aaron to the house of father's uncle. A couple of times father took Aaron fishing during the visits; otherwise, they would play. Father practiced the alphabet with Aaron and worked with him on his language skills. Aaron sometimes spent the night with father in his motor home, which was "out at the river." Aaron was taken to school in Selma during that time period, but father did not know what school he attended.
Father never tried to get legal or physical custody of Aaron during this time period, or request that Aaron live with him. Father did not know why he did not seek custody, stating that "at the time I was just waiting for her to get in trouble" for the things she had done, as he knew about her "[d]oing drugs every once in a while." Father admitted he was concerned at that time about Aaron being in her care, but he "couldn't do nothing because - because there was a couple times I thought about just leaving the state and taking him, but I found out that I couldn't take him, so - " Moreover, while father had a home, he "didn't have it stabilized enough." He did not think about calling CPS or the authorities. In 2006, mother and Aaron moved in with B.G., Sr. in Selma, where they lived until 2007.
After moving to Arizona in 2007, father spoke with Aaron on the telephone once or twice a week, and had personal contact with Aaron whenever father came to Fresno, which was about every three months. During those visits, father stayed for two or three weeks and would see Aaron every day, as he stayed in a motor home parked in front of mother's and B.G., Sr.'s house, where Aaron lived. The last time father had physical contact with Aaron was on Veteran's Day in November 2008 in Fresno. After that, he lost contact with mother and was not able to speak with Aaron. Between 2007 and 2008, father had reason to believe mother was using drugs. He called the Selma Police Department a couple of times in 2008 when he could not contact mother. The police went to B.G., Sr.'s house and verified that Aaron was "still supposedly at the house." Father did not come to California to talk to Aaron or find out where he was; instead, he tried to keep in contact with him by phone.
While father testified his last phone contact with Aaron was on his birthday in May 2009, he also testified that he did not talk to Aaron between December 2008 and October 2009, when Aaron became part of the child welfare system. Father said he tried calling his father's cell phone number in 2009, which was the only number he had to reach mother, but there was either no answer or, if someone answered, he was told Aaron did not live with B.G., Sr. anymore. Father, however, knew this was a lie, and that Aaron and mother still lived with B.G., Sr. in a motor home. Father explained that B.G., Sr. would say that mother and the children were not there and they were supposed to be in a shelter, but father did not believe him because he heard Aaron and the girls in the background. The last time father called B.G., Sr.'s phone number to contact Aaron was in "December 2009." Father did not come to Fresno to try to find Aaron due to "[m]oney situations."
Father had family in the area, including his brother, James G., who lived in Dinuba, and B.G., Sr., who lived in Selma. James called B.G., Sr. a couple times, who told him the same thing he had told father and not to call him again. Although James knew where B.G., Sr. lived, he did not go to see where Aaron was and father did not ask James to check on Aaron because the house B.G., Sr. and mother were living in "got condemned." After their eviction, B.G., Sr. and mother "lived outside the river." Father called other relatives to try to figure out where Aaron was, who told him they "were living on the river." Father sent the relatives to find Aaron. He also tried to file paperwork with Legal Aid to get custody of Aaron in 2008, but he could not serve mother with the papers because he did not have her address. Father was concerned that Aaron was not in school when mother became homeless. Father learned Aaron had been removed from mother when James contacted him after James heard from father's uncle Fred that CPS had picked up the children. Father then called CPS.
Since October 2009, father's contact with Aaron had been limited to telephone calls. At first, father called Aaron two or three times per month, but a couple months before the hearing he began calling Aaron every day. Father did not speak with Aaron every time he called, however, as Aaron was gone most of the time, but the two talked about three times per week.
Father had been living in his home for three years. He had two children in his care: his two-year-old biological son, who has seizures and cerebral palsy, and a stepchild. Father has been able to provide care for his youngest son, and even though his youngest son sometimes takes a lot of his time, he "still would have enough time to take care of Aaron." Father did not think Aaron needed to be introduced to him gradually because Aaron knew him "the whole time he was growing up." Father disagreed with the social worker's statement that he and Aaron did not have an established relationship. Father knew Aaron was developmentally delayed and believed he could meet Aaron's physical needs, including his special educational needs. Father also knew Aaron was receiving services from CVRC, where he was being taught "how to speak and stuff like that," and said there was a similar facility near his home in Arizona, Kingman Regional Medical Center, which father knew about because his younger son was "going through the same thing." Father and his girlfriend take his youngest son to the hospital for speech and physical therapies. Father thought Aaron would receive counseling through school and could receive services through "D.D.D.," in which his younger son was involved.
If Aaron were placed with father, he would allow Aaron to maintain telephone contact with mother and the girls, and would bring Aaron to Fresno "if I had to." Father thought he could bring Aaron to Fresno every three months if he had "help with like bringing him probably one way, but I have to have help going the other way." His financial situation made it difficult for him to attend prior court hearings. Father knew Aaron had had three foster care placements since being removed from mother and believed it was in Aaron's best interest to be placed with him because he would not be moving around. Father was arrested in 1999 on a burglary charge and had been on probation. His mother was missing and father was investigated in connection with her disappearance.
Father's brother James testified that he had been present when father had physical contact with Aaron, beginning in December 2003 and continuing until August 2007, when James moved to Arizona with father. During that time period, he personally saw Aaron and father together at least two or three times per week, for three to four hours each time. Sometime in 2008, father contacted him and asked him to find out why father was not allowed to talk to Aaron. James called B.G., Sr. to find out what was going on, but he did not get an answer and was told not to call again. James knew where B.G., Sr. was living, and while he drove by, he did not stop to check on Aaron because B.G., Sr. told him not to come around.
The social worker, Jennifer Wild, testified about two recent visits between father and Aaron that she observed, both of which were spent walking up and down a mall. During the first visit, father and Aaron talked and played on the playground. When Aaron walked in the door for the visit, he looked over in father's direction, but did not appear to recognize him. After several seconds, Aaron walked over to father and said, "Hey, dad." The visit ended with Aaron saying "Good-bye, dad." Aaron was not upset or crying. Aaron recognized father right away at the beginning of the second visit. At the end of that visit, Aaron hugged father after his foster mother prompted him to do so. Both visits went well and it appeared to the social worker that Aaron acted like he was seeing someone he had not seen in a while. Aaron did not exhibit fear or dislike of father.
Wild had observed Aaron with the girls in their foster home about four times and described their relationship as "very strong." During those observations, Aaron got along really well with the girls, he interacted and played with them, talked to them and asked questions. Wild believed the siblings were bonded. A couple of months before the hearing, Wild asked Aaron about the possibility of him not living with his sisters, but due to his special needs she did not think he could fully understand what it would mean to not be able to see his mother or sisters. Based on her experience with Aaron, Wild thought he would be sad to not be able to see his sisters on a regular basis.
After arguments of counsel, the court found the children came within the provisions of section 300, subdivision (b), and made them dependents. The court removed the children from mother's custody and the girls from R.H.'s custody. The court found there was clear and convincing evidence that it would be detrimental to place Aaron with father, as the evidence clearly showed Aaron is a special needs child and it would be detrimental to sever his relationship with mother and the girls, as separation from them would emotionally harm him. The court explained that if Aaron was placed with father out-of-state, he may not have the financial resources to ensure Aaron maintained contact with mother and the girls, and the court was concerned about Aaron obtaining stability and having nurturing relationships with them. Moreover, the court was concerned about father's failure and actions that actually placed Aaron at risk, explaining that although it recognized there was testimony that father's ability to maintain contact with Aaron occasionally was stifled, he failed to take any legal action to obtain custody of Aaron despite knowing mother was involved in activity that placed Aaron at risk. While the court recognized the process to obtain custody can be challenging to individuals, it believed Fresno County had ample resources to assist father had he wished to obtain custody and sought them out. Accordingly, the court denied father's request to place Aaron with him.
The court ordered visits between Aaron and father be supervised by the Department or an approved agency, and granted discretion to the Department for unsupervised visits conditioned upon ten court days' written notice and updated discovery. Visits were to occur only in Fresno County. The court also authorized telephone contact between father and Aaron to be supervised by the Department or an approved third party and granted father's counsel's request that the contact be twice weekly on a schedule set by the case manager, with calls to be no longer than 15 minutes. Mother and R.H. were given unsupervised visitation with the children.
The court granted reunification services for mother, R.H. and father, with mother and R.H. to complete parenting classes, random drug testing, and evaluations and recommended treatment for domestic violence, substance abuse and mental health. Other than visitation, no other services were ordered for father.
DISCUSSION
Placement with Father
Father contends the court wrongly determined that placing Aaron with him would be detrimental to his safety, protection, physical or emotional well-being. When a noncustodial parent requests custody of a minor who has been removed from the home, "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." (§ 361.2, subd. (a).) "If no detriment exists, the court orders placement of the child with that parent." (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.)
'"We review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the children would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.'" (In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570 (John M.).)
Here, the court based its detriment finding on father's failure to intervene over the years despite knowing Aaron was living in circumstances that placed him at risk of harm and moving to Arizona would disrupt Aaron's life. These factors support the finding.
Although father and mother remained together until 2005, when Aaron was three, when they separated father left Aaron in mother's care despite knowing she was using drugs. Father was concerned about mother's care of Aaron after their separation, yet he did not try to get custody of Aaron and instead waited for mother to get into trouble. Father's failure to intervene demonstrated a lack of good judgment concerning Aaron's well-being. Even if father could not have physically taken care of Aaron at that time, he could have reported mother to child protective services so Aaron could be protected from the potential harm caused by leaving him with mother.
After father moved to Arizona in 2007, he continued to believe mother was using drugs. Although he contacted both child protective services and the police, and had his brother James check on Aaron, he did not come to Fresno himself even though he knew mother and Aaron were homeless, as he testified their home was condemned and they were living by the river. Father contends he was not to blame for failing to find Aaron, arguing B.G., Sr. intimidated him and R.H.'s family kept him out of Aaron's life, and there was no evidence he was aware of the circumstances in which Aaron was living. The court, however, reasonably could find that father knew very well the circumstances in which Aaron was living, as father knew about mother's drug use, he stayed in a motor home parked in front of B.G., Sr.'s house when he visited Fresno and therefore would know what was happening with Aaron, and he knew mother and Aaron were evicted from that home and essentially were homeless. The court also reasonably could find, as it did, that father did not make sufficient efforts to intervene, as he never followed through on his attempt to obtain custody.
In addition, there is evidence that if Aaron relocated to Arizona, his ability to maintain a relationship with mother and his sisters, with whom he had lived his entire life, would be limited severely. Father testified he would allow Aaron to maintain telephone contact with mother and his sisters, and would bring Aaron to Fresno "if I had to[,]" but he could do so only every three months and only if he had financial assistance. Based on this evidence, the court reasonably could find that if Aaron were placed with father, he would have a minimal relationship with the only mother and sisters he had known. While we agree with father that there is little evidence regarding how Aaron would fare emotionally if his contact with mother and his sisters was limited to this extent, based on social workers' reports that the children were bonded to mother, social worker Wild's observations regarding the strength of the relationship between the children and the fact they had lived together their entire lives, it reasonably can be inferred that such a separation would impact Aaron negatively.
These factors are distinguishable from those in the cases father relies on, John M., supra, 141 Cal.App.4th 1564, and In re M.C. (2011) 195 Cal.App.4th 197. In John M., the juvenile court found detriment based on the 13-year-old child's stated wish not to live with his father, the child's relationship with his infant sister and members of his extended family, the child's lack of a relationship with his father, "the paucity of information" about his father, and the mother's reunification plan. (John M., supra, 141 Cal.App.4th at p. 1570.) The Court of Appeal concluded these factors were insufficient to support a finding of detriment. (Ibid.)In so holding, the appellate court found the child's wishes were not clear and, in any event, should not be the deciding factor. (Ibid.)The court also found there was little to no evidence the child had a particularly close relationship with his 10-month-old sister, pointing out they were detained together for only 16 days before he was moved to a relative's home, and even so, father would facilitate visitation between them. (Ibid.)The court noted that while father had been out of contact with the child for four years, he was not to blame for the separation and he resumed contact one year before the dependency petition was filed. (John M., supra, at p. 1571.)
In In re M.C., the juvenile court refused to place the child with the noncustodial father in Oklahoma, not because such a placement would be detrimental to the child, but because such a placement would jeopardize the child's interest in reunification with the mother. (In re M.C., supra, 195 Cal.App.4th at p. 224.) The Court of Appeal concluded the fact that reunification with another parent would be more difficult by placement with a noncustodial parent was not sufficient, by itself, to support a finding, by clear and convincing evidence, that it would be detrimental to place the child with an out-of-state presumed parent. (Ibid.)
Here, the court expressly found that father was to blame for leaving Aaron with mother in what he knew to be harmful circumstances. Moreover, there is evidence Aaron is close to the girls, as he had lived with them his entire life, been placed together with them in foster care, and social worker Wild testified they had a very strong relationship, and that it would be difficult for father to facilitate visitation with them. Unlike In re M.C., the court did not base its detriment finding on the difficulty placing Aaron with father in Arizona would put on mother's ability to reunify with him. Instead, it was father's failure to protect Aaron, along with the disruption in Aaron's relationships with his mother and the girls, which led the court to find detriment.
Father asserts the court failed to consider the benefits of Aaron's relationship with him by disregarding his desire for placement of Aaron, the Department's lack of concern regarding his ability to provide for Aaron's safety and physical well-being, and the nature of his relationship with Aaron. We interpret father's claim that the court ignored this evidence as little more than a request for us to reweigh the evidence and reach a different conclusion. We may not , however, reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833 (Laura F.).)Issues of fact and credibility are for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)
We can decide only whether sufficient evidence supports the juvenile court's finding. (Laura F., supra, 33 Cal.3d at p. 833.) On this record, we conclude there is sufficient evidence to support the court's finding of detriment.
Reunification Services
The court ordered that father receive reunification services, which consisted solely of visitation. Father argues the court erred when it failed to provide a case plan outlining the steps he needed to make in order to effectuate reunification with Aaron.
Father forfeited that contention, however, by failing to object to the disposition order on this basis in the juvenile court. (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1110; In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222; In re Elijah V. (2005) 127 Cal.App.4th 576, 582; see In re S.B. (2004) 32 Cal.4th 1287, 1293 ["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"].) Not only did father fail to object to the plan the court ordered, he specifically argued that his reunification plan should not include the services the Department initially recommended, parenting and a mental health evaluation, because there was no basis for them.
Even if not forfeited, the contention is without merit. While the court has broad discretion to make virtually any order deemed necessary for the well-being of the child (In re Sergio C. (1999) 70 Cal.App.4th 957, 960), in exercising its discretion to offer reunification services the court should tailor its efforts to provide services to fit the unique family circumstances. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1792; In re John B. (1984) 159 Cal.App.3d 268, 276.) This court will not reverse the juvenile court's determination concerning the provision of reunification services absent a clear abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the lower court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
In our view, the court did not abuse its broad discretion in ordering visitation as the only reunification service for father. As the Department points out, this was the one service father needed to reunify with Aaron. Since father had not lived with Aaron since Aaron was three and had not seen Aaron since November 2008, when Aaron was six, reestablishment of their relationship was critical to father's ultimate reunification with Aaron. The visits father had in November 2010 showed that while he interacted well with Aaron, Aaron was not closely bonded to him. Visitation would help develop that bond and hopefully place father in a position to reunify with Aaron. There is no abuse of discretion.
Visitation
The court ordered that father receive supervised visitation and gave the Department discretion to move to unsupervised visits with 10 days' written notice and updated discovery to all counsel. Father claims the court abused its discretion when it ordered his visits with Aaron to be supervised, as there was no evidence he posed a risk to Aaron.
The juvenile court is accorded broad discretion in fashioning visitation orders in keeping with its duty to protect the welfare and best interests of the child. (See, e.g., In re Julie M. (1999) 69 Cal.App.4th 41, 48; In re Elizabeth M. (1991) 232 Cal.App.3d 553, 569.) The record shows that throughout these proceedings, father was given supervised visitation with Aaron. In June 2010, the juvenile court gave the Department discretion to move to unsupervised visitation. The Department, however, never exercised that discretion. While father and Aaron had been visiting over the telephone, the first face-to-face visit father had with Aaron in nearly two years was in November 2010, during the course of the dispositional hearing. Since father had just begun in-person visits, the juvenile court reasonably could conclude that future visits should be supervised so that his interaction with Aaron could be observed, suggestions could be made to father on how he could better interact with Aaron, and the court could receive feedback on how their relationship was progressing. If father feels that supervision is no longer necessary, he may request the Department exercise its discretion to move to unsupervised visits and, if the Department fails to act on its discretion, he is free to seek modification of the visitation order through a section 388 petition. On this record, we find no abuse of discretion.
DISPOSITION
The juvenile court's dispositional orders are affirmed.
Gomes, Acting P.J. WE CONCUR: Kane, J. Franson, J.