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In re D.S.

California Court of Appeals, First District, Third Division
Apr 30, 2009
No. A122419 (Cal. Ct. App. Apr. 30, 2009)

Opinion


In re D.S., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILD AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. A.S., Defendant and Appellant. A122419 California Court of Appeal, First District, Third Division April 30, 2009

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. J08-00153.

McGuiness, P.J.

A.S. (Father), father of 10-year-old D.S., appeals from the juvenile court’s dispositional order placing D.S. with his mother, R.S. (Mother), and terminating jurisdiction over D.S. He contends the juvenile court abused its discretion in terminating jurisdiction because there was a need for ongoing supervision. We reject the contention and affirm the order.

Factual and Procedural Background

A dependency petition was filed on January 31, 2008, alleging Father placed D.S. at risk by punching and kicking him and denying him food. The petition also alleged that D.S. was suffering, or was at risk of suffering, serious emotional damage. According to the petition, Father asked D.S. how his arm was after he had punched D.S. in the arm the previous night. When D.S. responded that it hurt, Father punched D.S. in the arm again, with a closed fist, causing D.S. to cry. In the past, Father had called D.S. a horrible person and a “worthless piece of shit,” had threatened to kill D.S., and had told D.S. he was lucky Father has only hit him in the arm. D.S. had previously been placed on psychiatric hold for saying he was going to kill himself if he had to go home to Father. The petition stated that Mother lived in Las Vegas, Nevada. D.S. was detained on February 1, 2008, and the matter was set for a contested jurisdictional hearing on March 5, 2008.

At a hearing on February 15, 2008, counsel for Father informed the court that the Contra Costa Child and Family Services Bureau (the agency) had conducted a “partial investigation” of Mother’s home in Las Vegas and that Father was “very much in favor of the minor going to live with his mom in Las Vegas” instead of having him stay in foster care. Mother’s counsel stated that the agency had spoken to Mother and her live-in boyfriend and that both of them had “passed” an investigation with the police department. The court ordered, “So as soon as the [emergency] worker... visits the home site,... and unless some negative information is turned up in the next week or so, let’s have the child after [February 21, 2008], be placed with his mother in Las Vegas.”

A jurisdiction report prepared on or about February 21, 2008, stated that Mother and Father were married at the time D.S. was born. There was a Contra Costa County Superior Court child support order requiring Mother to pay child support to Father, but no custody order. The report stated that if subpoenaed, an emergency response social worker would testify that he interviewed D.S. at D.S.’s school. D.S. showed the social worker a bruise on his arm and said Father hit him there the night before. D.S. said that when he woke up in the morning, Father asked him how his arm was, and when he responded that it hurt, Father hit him again, making D.S. cry. D.S. also reported that Father “kicked me hard,” causing him to limp for days, and called him a “horrible person” and a “worthless piece of shit.” D.S. told the social worker that Father beats him and threatens to kill him and told him he was “lucky that he only hit me in the arm.” D.S. also said that Father did not give him dinner the previous night or breakfast that morning. He was afraid he would not get any dinner again that night. D.S. said he loves his father “very much.” The social worker took pictures of the bruises on D.S.’s arm. The social worker also spoke to Father, who told him he has said things to D.S. that “were just mean.” He reported that D.S. “lies about fake showers, not wiping and trash.”

The report stated that if subpoenaed, a deputy sheriff would testify that he also interviewed D.S. at his school. D.S. told the deputy sheriff that Father punched him in the arm. D.S. reported that “this is an ongoing problem and his father is always angry and yelling at him.” D.S. said he is afraid of Father and does not want to continue living with him. The report further stated that if subpoenaed, another deputy sheriff would testify that he interviewed D.S. on October 8, 2007, regarding a statement D.S. made about wanting to harm himself. D.S. said he was afraid to be with Father because of the physical and mental abuse, and that he was going to take a kitchen knife and stab himself in the heart if sent back to Father. An ambulance transported D.S. to a medical center for a psychological evaluation. The report recommended that the juvenile court continue to detain D.S. and set a disposition hearing.

At the jurisdictional hearing on March 5, 2008, Father admitted the section 300 (b)(1) allegations contained in the petition, as amended, and the other allegations were dismissed. The court accepted the parties’ stipulation to jurisdiction of the juvenile court based on Father’s admission.

As amended, the count provided: “The child’s father has placed the child at substantial risk of serious physical harm, in that: [¶] (a) On or about January 29, 2008 the child’s father punched the child on the child’s upper left arm with a closed fist; [¶] (b) On or about January 28, 2008, the child’s father punched the child on the child’s upper left arm with a closed fist, two times, which resulted in a one to two inch diameter bruise.”

A disposition report prepared on or about March 27, 2008, stated that D.S. was living with Mother in Las Vegas. Under the heading “prior child welfare history,” the report set forth six prior referrals regarding D.S., beginning on May 21, 2000, when D.S. was almost two years old. A reporting party saw Father choking D.S. and pulling him by the arms, and also alleged that both parents pinched D.S. hard enough to leave bruises. The allegations were determined to be unfounded after D.S. was seen in Mother’s home with no signs of abuse and Mother was found to be appropriately parenting the child. A second referral was received on February 24, 2002, after Father lost his temper and was placed on a 72-hour psychiatric hold. The referral was closed after an investigation showed D.S. was being well cared for.

A third referral was received on April 27, 2004, when Father reported he was unable to take care of D.S. D.S. had been living in Las Vegas with Mother’s parents since September 2003 but Father picked D.S. up on April 23, 2004, after the maternal grandparents said they could no longer care for D.S. Mother had not had any contact with D.S. in over one year, and Father was unemployed and having financial difficulties. D.S. was placed in foster care but was returned to Father after Father found a job and asked that D.S. be returned to him.

A fourth referral was received on February 14, 2006. There were allegations that Father did not give D.S. anything to eat, causing D.S. to become sick and vomit. D.S. told the emergency social worker that Father also hit him in the head. The school counselor said that D.S. is an intelligent child who “pushes [F]ather’s buttons on purpose.” She acknowledged that D.S. can be a “handful” but that Father needs to communicate with D.S. in a more positive manner. Father was provided with information about parenting programs and agreed to continue meeting with the school counselor who was teaching him about appropriate discipline and helping him improve his communication skills. The allegations were determined to be inconclusive and the referral was closed.

A fifth referral was received on November 7, 2007. There were allegations that Father physically abused and neglected D.S., including screaming at him, pushing him to the ground, slamming him down with two hands on D.S.’s chest, and denying him food. D.S. said he does not feel safe when he is alone with his father and feels helpless and powerless when Father is about to “blow up.”

While the investigation of the fifth referral was pending, a sixth referral was received on November 16, 2007, alleging more instances of general neglect. Father denied using physical discipline or withholding food from D.S. Father agreed to participate in a community based parenting education program and the referrals were closed on the ground that there was insufficient evidence of general neglect and physical abuse.

According to the report, Mother was interested in getting custody of D.S. and was willing to drive from Las Vegas for the upcoming court hearing. Mother said she was 16 years old when she had D.S. and that she and Father were together for the first year of D.S.’s life. One of the reasons she left Father is because he was abusive. Mother cared for D.S. for the first five years of his life, but when Father said he wanted to try being a parent, she agreed because she needed Father’s help at the time. When asked by the social worker why she allowed D.S. to live with an abusive man, Mother responded that Father was never abusive to D.S. She also knew that D.S. was in counseling with Father and thought the counselors would “report anything bad.” Mother said she would never have let D.S. stay with Father if she knew Father was physically or emotionally abusing D.S. She said she loves her son and wants him with her.

The report stated that before being placed with Mother on February 23, 2008, D.S. had one supervised visit with her on February 1, 2008. When told he would be visiting with his mother, D.S. asked, “my real mother?” and smiled when he was told yes. D.S. and Mother hugged when they saw each other, and Mother brought toys for D.S. D.S. met Mother’s fiancé for the first time and they got along well and played together. Before D.S. was placed with Mother, she maintained daily telephone contact with D.S. Mother was employed, had a suitable and stable home, and had the support of her fiancé, who was committed to raising D.S. with her. Mother had secured individual counseling for D.S. and was committed to attending joint sessions with him as needed.

According to the report, D.S. was safe in Mother’s home. He acted out on occasion and grabbed Mother’s arm and said “mean things” to her during an argument, but Mother acknowledged she had not been a parent to D.S. in four years, said she was aware of D.S.’s temper, and reiterated her commitment to being a parent to him. Mother’s fiancé had also shown a commitment to D.S. and was active in making many of the necessary arrangements for D.S. to come and live with them. D.S. appeared to respect the fiancé and listened to him.

Since his removal from Father, D.S. had four supervised visits with him that went well. D.S. also had telephone contact with Father. D.S. said he wishes to visit Father, but only if the visits are supervised. Father continued to deny that he physically, emotionally or verbally abused D.S. Father had initially supported D.S.’s move with Mother but said it may not be the best place for D.S. because Mother may not be able to deal with D.S.’s behavior. Father also expressed distress over the fact that Mother wanted to request child support to assist her in raising D.S. Father did not feel “this is right” because he cannot afford to pay child support.

The agency recommended that Mother have sole physical custody of D.S., with the parents sharing legal custody and Father having reasonable supervised visits. The agency also recommended that the juvenile court vacate dependency and dismiss the petition.

The disposition hearing was continued several times, during which time the process for an out-of-state transfer to Nevada was started. In a report dated June 4, 2008, a social worker reported that the appropriate paperwork had been sent in but that the transfer process had not yet been completed. According to the report, D.S. was receiving excellent care in Mother’s custody. Shortly after D.S. moved to Las Vegas, Mother and her fiancé moved into a bigger apartment. Since being placed with Mother, D.S. had had physical, dental and eye examinations and had some dental work done. He was doing well academically in school but due to ongoing behavioral issues, Mother took him to a behavior center to be evaluated. On May 19, 2008, D.S. began attending a behavioral day program where he spent time in group or individual therapy. He was hospitalized for seven days on May 20, 2008, and was prescribed medication. D.S. was scheduled to attend the behavioral day program for three more weeks before returning to school.

According to the report, Mother and her fiancé had lost their jobs due to taking time off to go to court hearings in California and to attend to D.S.’s needs. Before D.S. moved to Las Vegas, Mother checked with her insurance company regarding counseling services as she knew D.S. would need therapy. D.S. attended approximately four counseling sessions but Mother lost her medical benefits when she lost her job. She immediately applied for and obtained Medicaid for herself and D.S. and D.S. began counseling sessions again. He had attended a total of approximately nine sessions since March 20, 2008.

Mother and her fiancé informed the social worker that they would like to move to New Orleans, Louisiana, where the fiancé has family and they could live in a house rent free. This was a move they had wanted to make for some time, as the cost of living is cheaper in New Orleans. Mother and her fiancé felt it was a good time to move there. The report stated: “[Mother] is committed to her son. She has done everything she can to provide [D.S.] with the services he needs. She has been extremely cooperative with [the agency] and she has maintained in constant contact with this social worker. There is no reason to believe that if the case were closed that [Mother] would not continue to provide [D.S.] with excellent care... The decision [to move to New Orleans] was not made lightly.... [¶] [The agency] strongly believes that it is in [D.S.’s] best interest to remain in the care of his mother, without the involvement of [the agency]... [Mother] would like to be able to be a stay at home mom with [D.S.], however, if they remain in Las Vegas this is not something she can afford to do. She understands that he needs structure, guidance and a great deal of services. If she is working a full time job this will be much harder to maintain. [¶] [Mother] has done more for [D.S.] in the four months he has resided with her th[a]n was ever anticipated. She has also done more for him than [the agency] would have been able to do for him if he were in a foster placement.” The agency recommended placing D.S. with Mother and terminating the juvenile court’s jurisdiction over D.S.

At a June 17, 2008, disposition hearing, counsel for the agency asked the court to dismiss the case. She informed the court that Mother and her fiancé were still planning to move to Louisiana and had determined the school D.S. would be attending there. They had found their own counseling services when they were in Las Vegas, which indicated they would be able to find appropriate counseling and therapeutic services for the child in Louisiana. Counsel for the agency believed Mother had shown she is able to take care of D.S.’s needs. She was “very in tune to his needs, and she will continue to provide for him.” D.S. was doing “quite well” in school and was “thriving” in Mother’s care.

Minor’s counsel agreed, stating there was “absolutely no current risk to [D.S.] in his mother’s care at this time,” and that Mother had done “more for him since February than [F]ather has ever done.” Counsel indicated that D.S. wished to hear from his father and have visits with him but was “very clear” that he wants his visits with Father to be supervised, does not want to live with Father, and wants to live with Mother. Minor’s counsel reported that Mother had found available services in Louisiana and that the existence of a “sister hospital” in Louisiana would facilitate record sharing in the event D.S. ever needed hospitalization in the future. She indicated that D.S. was on medication and was being very closely monitored, and was doing well in school. She believed Mother was “dedicated to making sure that [D.S.] gets all of the education that he needs and that his mental health needs are taken care of.”

Mother’s counsel agreed that Mother has done a lot for D.S. and is a loving mother. Mother’s fiancé had also done a lot for D.S., including making sure D.S. was in therapy. The fiancé was a good role model for D.S. Mother and the fiancé did not use physical discipline, and Mother’s counsel believed D.S. was receiving stability, love and nourishment in Mother’s home.

Father’s counsel argued it was too early to dismiss the case. He noted that on May 20, 2008, a team of doctors or others had indicated that D.S. may be bipolar, and that D.S. was prescribed psychotropic medication on June 3, 2008. Father felt that Mother did not want to be investigated by social workers in Nevada or Louisiana. He argued that in light of the problems D.S. was having and Mother’s reluctance to provide information, it was too early for the court to “cut [D.S.] loose.”

The juvenile court found that D.S. “is simply not at risk in the mother’s home.” It found that D.S. was a disturbed child but that this fact did not justify continuing jurisdiction over the case. It found Mother had done everything she could and was impressed with her decision to seek help and a support system from family members by moving to Louisiana. The court granted Mother sole physical custody of D.S., granted the parents joint legal custody, and ordered that Father shall have reasonable supervised visits with D.S. in the city in which D.S. resides and that D.S. shall not be required to visit Father against his wishes. The court terminated jurisdiction over D.S. and dismissed the case, finding D.S. was no longer at risk in Mother’s home and that there was no reason for the dependency to continue in the case.

Discussion

Father’s sole contention on appeal is that the juvenile court abused its discretion in terminating jurisdiction over D.S. because there was a need for ongoing supervision. We reject the contention.

When a court orders removal of a child from his parent, it “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.” (Welf. & Inst. Code, § 361.2, subd. (a).) If the court places the child with the non-offending parent, it may grant that parent custody of the child and terminate jurisdiction, or continue jurisdiction if there is a need for ongoing supervision. (§ 361.2, subd. (b)(1); In re Sarah M. (1991) 233 Cal.App.3d 1486, 1495-1496 (Sarah M.), disapproved on other grounds by In re Chantal S. (1996) 13 Cal.4th 196, 204.)

All statutory reference are to the Welfare and Institutions Code.

Sarah M. provided a series of possible situations in which ongoing supervision may be necessary, stating: “While placement of the child with the formerly noncustodial parent may not be detrimental, there may be some concern that: this parent will turn around and relinquish the child to the other parent after the termination order; or this new custodial parent may need services. Also, the formerly noncustodial parent may not want long-term custody. Alternatively, the court may anticipate that with the appropriate reunification services, the child will be able to return to the home of the original custodial parent. It is also possible that... the court may see a need to provide services short of reunification for the child’s best interests.” (Sarah M., supra, 233 Cal.App.3d at pp. 1496-1497.) On appeal, we decide whether the juvenile court abused its discretion in terminating or continuing jurisdiction by evaluating whether there is substantial evidence to support its finding regarding the need for ongoing supervision. (See In re Austin P. (2004) 118 Cal.App.4th 1124, 1134 (Austin P.) [juvenile court did not abuse its discretion in continuing jurisdiction because there was substantial evidence to support its finding that there was a need for ongoing supervision].)

Here, substantial evidence supports the juvenile court’s finding that there was no need for ongoing supervision. At the time of the June 17, 2008, disposition hearing, D.S. had been living with Mother for approximately four months. The placement was safe and D.S. was receiving excellent care in Mother’s home. Although D.S. suffered from behavioral problems, Mother was aware of these issues, was committed to caring for him, and had sought appropriate services for D.S., including counseling and an evaluation at a behavior center. When Mother lost her medical benefits as a result of losing her job, she immediately sought other means to ensure D.S. received the counseling he needed. Although Mother and her fiancé had both recently lost their jobs, they had made the decision to move to Louisiana where they had a support system, and where they could afford to have Mother stay home to provide attention and support to D.S. Father notes that “It is not entirely clear exactly what services would be available to [D.S.] in Louisiana or how his mother would be able to pay for them absent court-ordered family maintenance services,” but minor’s counsel reported that Mother had already found available services in Louisiana, and the evidence showed that Mother had been resourceful in obtaining the services D.S. needed, even after she lost her job. Father also argues that the distance between California and Louisiana would make it more difficult for D.S. to maintain contact with him, but he fails to explain how ongoing supervision is necessary to ensure telephone contact or in-person visits.

Father relies on Austin P., supra, 118 Cal.App.4th 1124, which held there was substantial evidence to support the juvenile courts’ findings that there was a need for ongoing supervision. The case, however, does not support Father’s position. In Austin P., there was ample evidence of the need for ongoing supervision. The agency stated there was a need to monitor the conflict among the adults (the parents and the father’s wife) to ensure the child would not be “blamed for the dependency.” (118 Cal.App.4th at p. 1134.) Although the child was happy living with his father, he cried and said he wanted to be with his mother every time the social worker spoke to him, and he wanted to reunify with his mother, the only parental figure he had ever known. (Ibid.) The agency felt there was a need to supervise the transition of the child to his father’s home because of the sporadic contact between them over the preceding 10 years, and was concerned because the father and his wife had been aware of the physical abuse and neglect by the mother but had not taken steps to protect the child. (Ibid.) The agency was not sure the child would be adequately protected while in the care of his father and the father’s wife, and believed the child needed therapy services, “which would occur only if the matter remained open.” (Ibid.)

Father also relies on In re John M. (2002) 102 Cal.App.4th 141, but it is apparent he listed the wrong citation, as no such case exists. We presume he is referring to the case of In re John M. (2006) 141 Cal.App.4th 1564. The case is inapposite, however, and also does not support Father’s position because it dealt with the issue of whether placing the child with the non-offending parent would be “detrimental” to the child under section 361.2, not whether ongoing supervision was needed after the child had already been placed with the non-offending parent. (Id. at pp. 1569-1571.)

In contrast, here, there was no need to monitor any conflict among adults because there was no evidence of conflict between the parents, or between Father and Mother’s fiancé. There was also no evidence that ongoing supervision was necessary to ensure that D.S. would not be “blamed for the dependency.” (See Austin P., supra, 118 Cal.App.4th at p. 1134.) Minor’s counsel stated, and it was undisputed, that D.S. was happy living with Mother and her fiancé and that he wished stay in Mother’s home and to have only supervised visits and telephone contact with Father. Although Mother had not been a parent to D.S. in the preceding four years, there was evidence that she had or shared physical custody of D.S. for the first five years of his life and was committed to being a parent to him again. There was also evidence that Mother was unaware of the physical and emotional abuse D.S. suffered under Father’s care, and that she would not have let D.S. stay with Father if she had known of the abuse. According to the agency, Mother had done more for D.S. in the four months he was in her care “th[a]n was ever anticipated,” and it was clear she was committed to—and capable of— ensuring that D.S. received the services he needed without agency supervision. The juvenile court did not abuse its discretion in terminating jurisdiction over D.S.

Disposition

The dispositional order is affirmed.

We concur: Pollak, J., Siggins, J.


Summaries of

In re D.S.

California Court of Appeals, First District, Third Division
Apr 30, 2009
No. A122419 (Cal. Ct. App. Apr. 30, 2009)
Case details for

In re D.S.

Case Details

Full title:In re D.S., a Person Coming Under the Juvenile Court Law. CONTRA COSTA…

Court:California Court of Appeals, First District, Third Division

Date published: Apr 30, 2009

Citations

No. A122419 (Cal. Ct. App. Apr. 30, 2009)