Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; Los Angeles County Super. Ct. No. CK28809, petition for extraordinary writ. Sherri S. Sobel, Juvenile Court Referee. Petition denied.
Law Offices of Katherine Anderson and Victoria Doherty for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Real Party in Interest.
MALLANO, Acting P. J.
I.D. (Father) challenges the sufficiency of the evidence supporting the juvenile court’s February 21, 2007 finding that the return of his son, E.H. (born in January 2005) to Father’s custody posed a substantial risk of detriment to E.H.’s well-being because of Father’s unresolved domestic violence problem. Because substantial evidence supports the court’s finding, we deny Father’s petition.
BACKGROUND
Before E.H. was born, his older sister, I.H. (born in October 2003), and his half-brother F.K. (born in 1998) were declared dependents of the juvenile court due to a history of domestic violence between Father and C.H. (Mother), and Father’s physical abuse of F.K. In connection with the siblings’ case, in March 2004 the parents were ordered to enroll in domestic violence counseling, which Father completed in September 2004. I.H. was placed in the parents’ home in February 2005.
When E.H. was four months old in May 2005, the parents engaged in a violent physical altercation in E.H.’s presence, with Father striking Mother’s face. E.H. and I.H. were detained and placed together in foster care. In August 2005, E.H. and I.H. were placed with the maternal aunt, their prospective adoptive parent.
Parental rights to I.H. were terminated in a February 7, 2006 order, which was upheld on Father’s appeal. (In re I.H. (Jan. 25, 2007, B190107) [nonpub. opn.].)
On August 4, 2005, the juvenile court sustained a petition declaring E.H. a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), based on the parents’ domestic violence and Father’s previous abuse of E.H.’s half-brother. (Unless otherwise stated, further statutory references are to the Welf. & Inst. Code.) The parents were afforded monitored visits three hours per week and family reunification services. Although the parents were no longer living together, both were ordered to attend a 52-week domestic violence counseling program. They were also ordered to enroll in a child development class for effective parenting, and in conjoint counseling if they intended to live together.
In November 2005, the Department of Children and Family Services (DCFS) reported that in August 2005, the parents enrolled in a parent-child interactive development program and attended consistently. On September 1, 2005, Father enrolled in a domestic violence counseling program. Father also had two hours of monitored visits every Wednesday, during the parent-child development program. In November 2005, Father filed a section 388 petition complaining that notwithstanding his compliance with the court orders, he was not getting his weekly three hours of visits with E.H. Father also requested unmonitored visits.
As of December 21, 2005, Father had attended 17 sessions of the domestic violence program, with his counselor reporting that Father appeared to have an “overall accepting and positive attitude.” But Father had stopped attending the parent-child development program because he had multiple disagreements with the program staff and was resistant to following the program curriculum. Mother complained to DCFS that Father was verbally abusive to her and sexually inappropriate with I.H. Father complained to DCFS that Mother sometimes became belligerent with him. Notwithstanding their conflicts, including one which resulted in Mother calling the police regarding Father, Father would provide rides to Mother and allowed Mother to visit him and stay overnight at his home. But the parents stated that they did not plan to reunite and were not attending conjoint counseling. According to the January 17, 2006 status review report, both parents lacked “insight into the main issue affecting their reunification with their child, which is their bickering/conflictive relationship.”
At the six-month review hearing held in January 2006, Father testified that Mother came to his home on two occasions in late 2005, but she was not his girlfriend. Father characterized Mother as irresponsible and untrustworthy, and claimed that she could not take care of the children. Mother testified that she and Father still had an intimate relationship and he told her that she was his girlfriend. But Father would push and threaten her. On January 25, 2006, the juvenile court denied Father’s section 388 petition and found that the parents had not made significant progress in resolving their problems. Nevertheless, the court granted an additional six months of family reunification services.
In July 2006, the court found that the parents had made significant progress in resolving their problems and afforded each parent one hour per week of unmonitored visitation. But the court ordered the parents to enroll in the Parents Beyond Conflict program and ordered an Evidence Code section 730 evaluation of Father. The court set a section 366.22 hearing for November 17, 2006.
Alfredo Crespo, Ph.D., a licensed psychologist, in a September 2006 evaluation of Father stated that Father viewed himself as a victim of discrimination, injustice, and unfair treatment by DCFS. Father also denied being abusive with Mother or the children and claimed that he was a victim of domestic violence. According to Crespo, Father’s evaluation suggested that “he is rather controlling and that he can be expected to remain entrenched in a perspective that he has apparently with some success convinced politicos to help him overcome what he appears to sincerely view as a gross injustice. His current test results suggest that he is predisposed to adopting a self-righteous, combative stance vis-à-vis those that he perceives as undermining of his role as his children’s father and the present evaluation suggested this may well stem from a Narcissistic Personality Disorder rather than a paranoid predisposition.” Crespo recommended that Father enroll in individual counseling and observed that Father “needs to understand how the unfortunate, negative impact his complaints about [his children’s placement and caregiver] ultimately has had on the minors, including the risk to their stability stemming from rather outrageous accusations of drug use and sales in the aunt’s home. Until it is clear that he has made progress in these parenting areas his visits should be monitored but increasingly liberalized.”
In October 2006, the court ordered Father to attend individual counseling. Father was afforded one hour of unmonitored visitation and three hours of monitored visitation each week. Although Father’s attorney stated that Father was opposed to individual counseling because he did not believe he had a mental health issue, Father began such counseling on October 27, 2006. According to DCFS’s November 17, 2006 status review report, Father interacted well with E.H., but Father still expended energy complaining about the caregiver, DCFS, attorneys, and the court system. Although he completed all required programs and terminated his relationship with Mother, Father exhibited “negative behavior, dysfunctional patterns of coping, and poor insight into taking responsibility for his involvement in this matter.” Father still did not take any responsibility for any physical abuse of E.H.’s half-sibling or for the domestic violence conflict with Mother. DCFS recommended against returning E.H. to Father’s custody because he “continues to have poor insight into his behavior and this poses a risk to the safety and well-being of [E.H.] if he was to return to the care of father at this time.”
Because Father visited E.H. regularly and the visits went well, the juvenile court increased Father’s unmonitored visitation to two hours per week in November 2006. Upon the parents’ request for a contested hearing, the court continued the section 366.22 hearing to January 11, 2007, and then continued it again to February 21, 2007.
Attached to DCFS’s January 11, 2007 addendum report was a letter from Father’s individual counselor, Gilbert Cardona, with whom Father was in “Cognitive Behavioral Therapy” beginning in October 2007. Cardona wrote that during Father’s sessions, “we have focused on cognitive restructuring, and sessions have centered around building parenting skills, resolving family issues, and the law.” Father was “cooperative and adherent to the treatment plan,” but in Cardona’s judgment, Father “requires further monitoring until he gains sufficient parenting skills and resources to be able to look after a child.”
DCFS reported on February 13, 2007, that E.H. suffered a scratch on his wrist while playing with his bike. The caregiver’s babysitter cleaned the scratch with peroxide and notified the caregiver. A public health nurse observed the scratch on February 7, 2007, and characterized it as “‘an almost healed one inch curved scratch.’” Father characterized it as a “‘cut’” and claimed that it was infected when he saw E.H. on January 30, 2007. The nurse attempted to teach Father about toddler play and how children normally will suffer scratches and bruises, but Father did not appear to be listening to her. A DCFS social worker also contacted Cardona and asked him whether he had any concerns about Father’s personality, and Cardona replied that Father could improve his parenting skills. Cardona further stated, “‘Look everyone has something. I don’t know.’”
At the section 366.22 hearing on February 21, 2007, Father testified that he had completed all court-ordered programs, including two domestic violence courses. In his domestic violence courses he learned “[n]ot to be violent, for example, with your partner, . . . to people in the street, with the neighbors. I have the privilege of not being a violent person. I’m a calm person.” Father stated that the classes also taught him to respect other people “a lot.” On cross-examination, Father also testified that in his sessions with Cardona, he discussed “how the case was processed with my daughter [I.H.] and how they believed all of the lies that the social worker said.” Father also stated, “I’ve done everything and nobody believes what I’ve done for myself and for my children.” Father claimed that the cut on E.H.’s wrist needed stitches and was infected. Father also claimed that the domestic violence “started against me first.”
The juvenile court terminated reunification services and found by a preponderance of the evidence that the return of E.H. to his parents’ custody “would create a substantial risk of danger to the physical or emotional well-being of the child.” Noting that “there’s never been any question that [Father] loves this child,” the court nevertheless found that Father was “unable to conform his behavior to the behavior of someone who poses no risk to a child.” The court stated also that Father had not yet taken any responsibility for his actions in placing his children at risk of harm and claimed the May 2005 incident of domestic violence which led to E.H.’s detention was Mother’s fault. The juvenile court concluded that Father failed to recognize and admit the problems which required the removal of E.H. from his home and did not learn from the programs provided by DCFS. A section 366.26 hearing was set for June 20, 2007.
Father filed a petition for extraordinary writ, challenging the sufficiency of the evidence supporting the juvenile court’s finding that the return of E.H. to his custody posed a substantial risk of detriment.
DISCUSSION
“Appellate justices review a respondent court’s decision after a section 366.22 ruling as follows: ‘Evidence sufficient to support the court's finding “must be ‘reasonable in nature, credible, and of solid value; it must actually be “substantial” proof of the essentials which the law requires in a particular case.’” [Citation.] “Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” [Citations.]’ [Citations.] In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination. [Citations.]” (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705 (Constance K.).)
At the section 366.22 hearing, a juvenile court can consider, among other things, whether changing custody will be detrimental because severing a positive, loving relationship with the foster family will cause serious, long-term emotional harm, whether properly supported psychological evaluations indicate that return to a parent would be detrimental to the minor, the minor’s not having lived with the parent for long periods of time, the manner in which the parent conducted himself in relation to the minor in the past, and the limited awareness by a parent of the emotional and physical needs of a child. (Constance K., supra, 61 Cal.App.4th at pp. 704–705.)
In Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748 (Blanca P.), the court acknowledged that “[t]he harder cases are, like the one before us, where the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent. The problem is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes . . .) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good). These are sensitive cases, fraught with emotional overtones, because they invariably deal with an evaluation of the personality, character and attitudes of the parent.”
The Blanca P. court then discussed cases which it found instructive in providing guidance as to the quantum of evidence required to sustain a detriment finding. One of the cases, In re Brian R. (1991) 2 Cal.App.4th 904 (Brian R.), was summarized as follows: “There, the father had ‘made substantial strides’ in curing the problems that led to the dependency. He now tested ‘clean’ for illegal drugs, had completed a parenting class, was receiving domestic abuse counseling, was consistently visiting his child, and had stable employment and housing. [Citation.] He had, like the father in [In re Jasmon O. (1994) 8 Cal.4th 398], turned his life around. [¶] However, a psychologist concluded that ‘despite this reversal’ the father ‘did not have the capacity to parent.’ [Citation.] Based on ‘testing and on clinical evaluations’ the father had a ‘nonspecific, long-standing personality disorder with marked antisocial, dependent, and passive-aggressive features.’ He ‘rationalized his abuse of his domestic partners; and he had a problem with taking responsibility.’ Thus if the child were returned, there was still the risk of abandonment. Plus, the father was ‘likely’ to change residences and caretakers and to develop ‘unstable, unhealthy relationships’ which would entail ‘possible domestic abuse.’ [Citation.] This evidence, held the Court of Appeal, was not too speculative, because it was ‘expert opinion testimony, based on psychological testing and clinical evaluation.’ [Citation.]” (Blanca P., supra, 45 Cal.App.4th at pp. 1749–1750.)
Father argues that there was insufficient evidence of detriment because he had complied with the case plan, had a close and bonded relationship with his son, and had never harmed his son. And he asserts that “[t]he fact that [he] is an opinionated man, who did not agree with his child being made a dependent of the court and had many criticisms of DCFS and the system does not amount to substantial evidence that if [E.H.] was returned to his father that [E.H.] would be at risk of harm.” Father also maintains that the juvenile court “overlooked the fact that the reason for [E.H.’s] detention, domestic violence between the parents, had been ameliorated,” and that “this issue was solved during the pendency of the case.”
But under the applicable standard of review, we are required to draw inferences from the evidence favorable to the juvenile court. The juvenile court reasonably inferred from the evidence that Father had not taken responsibility for his involvement in domestic violence, that the domestic violence issues had not been resolved or significantly ameliorated and that Father had not learned how to protect his child from domestic violence. In addition to the risk of exposure to domestic violence, the juvenile court also reasonably could have inferred that returning E.H. to Father’s custody would be detrimental to E.H.’s security and stability because he had lived most of his life with his maternal aunt and because Father had a limited awareness of the needs and play activities of a toddler. These inferences are supported by Crespo’s report, Cardona’s letter, the history of the case, and Father’s own testimony.
The circumstances here are similar to those in Brian R., supra, 2 Cal.App.4th 904, which supports our conclusion that the record contains substantial evidence supporting the court’s finding that the return of E.H. to Father’s custody would create a substantial risk of detriment. Father’s petition simply asks us to draw inferences and make findings different from those of the juvenile court, which we cannot do.
DISPOSITION
The petition for an extraordinary writ is denied.
We concur:VOGEL, J., ROTHSCHILD, J.