Opinion
NOT TO BE PUBLISHED.
APPEAL from orders of the Superior Court of Los Angeles County, Milton Simon, Referee, Los Angeles County Super. Ct. No. CK67411.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
In this dependency proceeding, appellant Derek P. (father) is the father of Joshua P., who was four months old at the time of detention and resided with his mother, Claudia P (mother). At the time of detention, father lived in Utah and was participating in a Job Corps program. Father appeals the juvenile court’s dispositional order pursuant to which the court placed Joshua in mother’s care pursuant to a home of parent order, and also ordered father to participate in reunification services, including parenting classes and individual counseling.
Joshua’s mother, Claudia P., is not a party to this appeal.
On appeal, father asserts that as a non-offending parent: (1) he was denied due process when the trial court allegedly limited his custodial rights; (2) there was insufficient evidence to support removing Joshua from father’s care; and (3) there was insufficient evidence to support the court order requiring father to attend parenting classes and individual counseling. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Incident Leading to Detention
This case came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) on March 10, 2007, when mother, a minor at the time, was arrested for threatening a staff member at the group home where mother resided with Joshua. This incident occurred after the group home removed mother and Joshua from their room following a flooding problem, which resulted in flood damage and mold. Mother was not responsible for the flooding incident. Mother, however, attempted to reenter her old flooded room to retrieve personal items. In response, a staff member told mother to remain outside the room. Mother threw a chair at a window of her old room. Mother also threatened a staff member with physical violence by mother’s associates.
Mother and the paternal grandmother, Eleanor C., reported to the arresting officer that father was in a Job Corps program in Utah. The officer noted in his report that Joshua had not been abused, but that he could not reside at the group home because of mother’s arrest. He also reported that he would have allowed the paternal grandmother to take the child, but he contacted the DCFS because the agency was providing services to mother because she was still a minor.
That day, the DCFS placed Joshua in the temporary custody of the paternal grandmother. Mother wanted Joshua placed with the paternal grandmother, with whom she had resided in the past.
2. Notice to Father
The DCFS sent father telegram notice to the Clearfield Job Corps Center in Utah on March 13, 2007. In the notice, the DCFS advised father of the detention hearing, and the date, time and location of the hearing. On March 13, 2007, the paternal grandmother reported to the DCFS that father was aware of the detention hearing.
3. Juvenile Dependency Petition and Detention Hearing
Based upon the incident at the group home, on March 14, 2007, the DCFS filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (b) [failure to protect]. The detention report noted that mother was the subject of prior dependency petitions due to alleged abuse by the maternal grandmother, Blanca L. In those proceedings, the juvenile court placed mother into long-term foster care.
Unless stated otherwise, all statutory references are to the Welfare and Institutions Code.
Mother reported to the DCFS that Derek P. was Joshua’s biological father. Mother, however, wanted Joshua to live with the paternal grandmother, where mother had resided for several months in 2005-2006 while in foster care. The DCFS removed mother from the paternal grandmother’s home after father returned to the home. The DCFS placed her into a new foster home.
Father was not present for the detention hearing. The juvenile court appointed counsel for father. The court also appointed Carrie Clarke, an attorney, to serve as father’s guardian ad litem.
The juvenile court found that the DCFS had set forth a prima facie case that Joshua was a person described by section 300, subdivision (b). The court formally detained Joshua and placed him with the paternal grandmother. The court declared father to be the presumed father, granted him monitored visitation and continued the matter for a pretrial resolution conference hearing.
4. Jurisdictional Hearing
The DCFS filed a report for the April 19, 2007, jurisdictional hearing. There, the DCFS noted that father had a history of arrests. The social worker interviewed father on April 12, 2007. Father stated that he had been convicted for making a terrorist threat against a teacher in junior high school. His subsequent arrests involved parole violations stemming from this one conviction.
The DCFS served father with notice of the hearing. The notice was on a form approved by the Judicial Council of California. The form stated that the juvenile court could proceed with the hearing if the parents were not present. The form also stated that the juvenile court could receive evidence and determine if the allegations were true. The form further provided that if the allegations were found to be true, the court could remove custody from the parents and make orders regarding visitation and placement of the child.
Father also reported that he had been at the job corps program since January 30, 2007. He stated that he joined the Job Corps in order to be able to provide for Joshua. Father told the social worker that he wanted Joshua to reside with the paternal grandmother, Eleanor C. Father stated that mother was a good mom, but that she had anger management issues.
The DCFS also reported that mother and father had been romantically involved for two years, but did not consider themselves to be involved at the present time. The paternal grandmother reported that mother was a sweetheart with anger problems. She also reported that mother and father argue and that nine times out of ten, they “take it to another level.” She reported that she had observed mother and father strike each other.
Following the incident at the group home which led to the detention, mother was placed on criminal probation. She acknowledged that she was angry, but denied putting her hands on anyone. Father explained that he and mother did argue, which sometimes ended with mother hitting father.
The DCFS recommended that Joshua remain placed with the paternal grandmother. The DCFS explained that mother had gone AWOL from her new foster placement and that she was having problems with her roommate.
Father, mother and the paternal grandmother appeared for the April 19, 2007, hearing. Father requested unmonitored visits, which the trial court granted. Father provided the paternal grandmother’s address as his permanent address. Father’s attorney stated that father understood the nature of the proceedings, was able to participate and did not want a guardian ad litem. The guardian did not believe that father understood the issue. The court continued the issue of appointment of the guardian to the next hearing.
At the conclusion of the hearing, the juvenile court ordered the parents back. The court cautioned the parents that if they were not present, the court could proceed without them. The court noted that it could find the allegations to be true and declare Joshua to be a dependent of the court. The court explained that if it did that, it could order the release of Joshua to one parent and issue an order limiting the other parent’s rights. The court also noted that it could place Joshua in a foster home and order the parents to participate in programs to regain custody.
5. Information for Court Officer
On May 10, 2007, the DCFS filed an information for court officer. There, the DCFS explained that mother should not be placed with paternal grandmother. The DCFS was concerned that the placement was in a rival gang’s territory and was potentially dangerous to mother. In addition, mother left her prior placement and went to the paternal grandmother’s home. The paternal grandmother did not notify the DCFS about mother’s whereabouts. Finally, the DCFS was concerned about mother’s sometimes violent relationship with father.
6. Adjudication Hearing
At the May 10, 2007, hearing, the juvenile court addressed the guardian issue. The court ordered that the guardian was to remain, which was consistent with father’s stated wishes. Father’s counsel waived father’s appearance. The juvenile court proceeded to adjudicate the petition. The juvenile court sustained an amended version of the section 300 petition, which appeared in a mediated agreement that mother and the DCFS signed.
The court ordered the DCFS to provide mother with counseling referrals and transportation funds. The court continued the matter for a pre-release investigation of the parental grandmother, a progress report to address a potential home of parent-mother order, and for a contested dispositional hearing.
7. Initial Dispositional Hearing
By the time of the July 18, 2007, dispositional hearing, mother was having school problems and had not enrolled in counseling. Mother was on a waiting list for in-home counseling. The DCFS was trying to comply with the requirements of the American Safe families Act with respect to approving the paternal grandmother’s home.
Father was not present for the hearing. Father’s counsel and guardian, however, were present. Mother stated that she wanted Joshua placed with her or in the same home with her. Father wanted Joshua placed with the paternal grandmother. The court continued the hearing. The DCFS had not determined whether the paternal grandmother’s home would meet the licensing requirements. The court also ordered the DCFS to investigate if Joshua could be placed with mother in her foster home.
8. Continued Dispositional Hearing
For the August 16, 2007, continued dispositional hearing, the DCFS recommended that the court return Joshua to mother’s care. The DCFS also recommended family maintenance services for mother and Joshua. Mother was in compliance with her court orders and she was participating in anger management and individual counseling. Mother had consistent and positive visits with Joshua. Wraparound and therapeutic mental health services were in place for mother. In addition, mother had developed a positive relationship with the foster mother. The foster mother was happy to have Joshua placed in her home.
The DCFS also submitted a mental health report regarding mother. The report stated: “From the mental health viewpoint, it is highly desirable for DCFS to recommend Joshua’s reunification with his mother to the court . . . .”
Father was not present for the August 16, 2007, hearing. Father’s counsel asserted that the court should fashion an order placing Joshua primarily with mother, but with father having unmonitored day visits and the paternal grandmother having unmonitored overnight weekend visitation.
Counsel for the DCFS responded that it was recommending that Joshua be placed with mother. Counsel stated it was unnecessary to name father in the petition because he was non-custodial at the time of detention. Counsel also noted that there were issues related to father’s ability to parent including his prior criminal activity and that he was involved in Job Corps to deal with his criminal issues. Counsel agreed that father should have unmonitored day visits when he was in Los Angeles.
Father’s guardian ad litem responded that it was unfair of the DCFS to assert at the disposition hearing that father had a history which would not permit him to have custody of Joshua. The guardian noted that the DCFS did not make any allegations regarding father in the dependency petition and that father was non-offending. The guardian explained that the DCFS had the burden to prove by clear and convincing evidence that Joshua would be at risk in father’s care. The guardian requested a home of both parents order, pursuant to which mother would have primary custody.
At the hearing, the court found that mother was doing very well and ordered Joshua returned to the care of mother. The court ordered the DCFS to provide family maintenance services for mother and Joshua. The court also ordered the DCFS to provide family reunification services for father. The court signed a disposition plan, which provided that mother was to participate in individual counseling, anger management, and wraparound services.
In the minute order, the trial court made placement findings as to father only. The court found by clear and convincing evidence that there was no reasonable means to protect Joshua without removal from parent custody.
Father’s counsel then requested family reunification services for father. In response, the court ordered father to complete individual counseling to address case issues and parenting classes. The court allowed father unmonitored day visits and the paternal grandmother overnight and weekend visits. The court also found that continued jurisdiction was necessary. Father timely filed a notice of appeal.
CONTENTIONS
Father contends that: (1) he was denied due process because as a presumed non-offending father the juvenile court should have granted him at the least joint legal custody with mother; (2) substantial evidence did not support Joshua’s removal from father’s custody or a limitation on father’s custodial interests; and (3) the juvenile court order requiring father to attend parenting classes and individual counseling is not supported by substantial evidence.
STANDARD OF REVIEW
We review the trial court’s factual finding and orders at disposition pursuant to the substantial evidence standard of review. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
DISCUSSION
1. The Juvenile Court Did Not Deny Father Due Process and Substantial Evidence Supports the Juvenile Court’s Dispositional Order Placing Joshua with Mother
Father asserts that he was denied due process at the dispositional hearing on the basis that the juvenile court limited his custodial rights to Joshua even though he was a non-offending and presumed father at the time of the initial detention. We disagree. In this case, the juvenile court complied with the applicable statutes and did not impair father’s constitutional or statutory rights by ordering Joshua returned to mother’s care.
There are a number of statutes relevant to the issue presented. First, section 361, subdivision (a) provides in pertinent part: “In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all those limitations.” (Italics added.)
Second, section 361, subdivision (c), provides in pertinent part: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody. . . . The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.” (Italics added.)
Third, section 361.2, subdivision (a), provides in pertinent part: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
In this case, the juvenile court complied with the foregoing statutes. Section 361, subdivision (a), expressly authorized the juvenile court to limit the control to be exercised over Joshua “by any parent” at the time that it adjudged Joshua to be a dependent of the court pursuant to section 300. In this case, the juvenile court conducted the adjudication hearing on May 10, 2007. Thus, at that hearing, section 361, subdivision (a), by its own plain wording, authorized the juvenile court to limit the control to be exercised by father.
Substantial evidence supported the trial court’s discretion to limit father’s control over Joshua. While technically he was a non-offending parent, the record contained substantial evidence of past criminal behavior by father and a sometimes violent relationship with mother. Notably, the evidence suggests that father enrolled in the Job Corps program in order to deal with his criminal history.
In addition, the juvenile court complied with section 361, subdivision (c)(1), by placing Joshua with the paternal grandmother well before the time that it conducted the adjudication hearing. On March 14, 2007, the juvenile court ordered Joshua placed with the paternal grandmother. At that time, father was a non-offending parent who presented an acceptable plan to the juvenile court for the care of Joshua pending the dispositional hearing. Thus, by the time of the May 10, 2007, adjudicatory hearing, the trial court did not err by placing Joshua with the paternal grandmother. Moreover, the statute is discretionary in nature and did not require the juvenile court to place Joshua with the maternal grandmother.
Finally, the first sentence of section 361.2, subdivision (a), states that the statute comes into play “[w]hen a court orders removal of a child pursuant to Section 361 . . . .” Section 361.2, subdivision (a), does not apply in this case because the juvenile court did not order removal of Joshua from mother’s care pursuant to section 361. The record shows the opposite. When initially detained, the court removed Joshua from the mother’s custody pursuant to section 319. The minute orders from the subsequent May 10, 2007, adjudicatory hearing and the August 16, 2007, dispositional hearing show that the court did not in fact order removal of Joshua from mother’s care pursuant to section 361. Instead, by the time of the August 16, 2007, hearing, mother had made such sufficient progress with her case plan that the court refused to order Joshua’s removal from mother’s care pursuant to section 361.
Moreover, section 361, subdivision (c)(1), and section 361.2, subdivision (a), do not purport to limit the discretion of the juvenile court at the dispositional hearing from returning a child to the custody of the offending parent, which, in this case, was mother. Father has provided no authority to the contrary.
In fact, section 361.2, subdivision (b)(3), contemplates, in appropriate cases, returning children to the custody of the offending parent at a review hearing. Section 361.2, subdivision (b)(3) provides: “If the court places the child with that [non-offending] parent it may do any of the following: [¶] . . . [¶] (3) Order that the parent assume custody subject to the supervision of the juvenile court. In that case the court may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child.”
In conclusion, we find no error by the juvenile court in fashioning a home of parent-mother order at the dispositional hearing to return custody of Joshua to mother. The case of In re Isayah C. (2004) 118 Cal.App.4th 684 does not compel a contrary conclusion. That case is distinguishable because in that case, the juvenile court at the dispositional hearing made an order removing the child from the mother’s custody pursuant to section 361. (Id. at p. 693.) This was a critical finding that is absent in the present case. Thus, because the juvenile court in this case did not remove Joshua from mother’s care pursuant to section 361, the rights of father set forth in section 361.2, subdivision (a), were not triggered or set into motion.
Father also asserts that the juvenile court erred by removing Joshua from his custody pursuant to section 361 because the juvenile court did not make the appropriate findings of detriment and such findings could not in any event be supported by substantial evidence. We agree with father that the juvenile court erred by making this finding. Father was not the custodial parent and thus section 361 did not apply to father. The court could not remove Joshua from father’s custody pursuant to section 361.
The notation on the August 16, 2007, minute order stating that the juvenile court made section 361, subdivision (b), findings against father is inconsistent with the reality of what occurred and inconsistent with what occurred during the hearing as reported in the Reporter’s Transcript. Father was not the custodial parent. The juvenile court did not adjudicate the petition against father, nor remove Joshua from his custody. Thus, we conclude that the minute order contains an error which we may disregard. (See In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1241, fn. 5.)
Otherwise, the juvenile court did not violate father’s right to due process. Father received adequate notice of all proceedings, where he was represented by counsel and a guardian ad litem. (See In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.)
2. The Juvenile Court Did Not Err by Ordering Father to Attend Parenting Classes and Individual Counseling and Limiting His Visitation to Unmonitored Day Visits
Father claims that at the August 16, 2007, hearing, the juvenile court erred by ordering father to attend parenting classes and individual counseling, and by limiting his visitation to unmonitored day visits. We find no error.
At the August 16, 2007, hearing, counsel for father expressly requested that the court provide father with family reunification services. Moreover, upon a finding that Joshua was a child described by section 300 (which finding the trial court made on May 10, 2007), section 361, subdivision (a), gave the juvenile court discretion to limit the control to be exercised by father over Joshua.
The record shows that the case plan for father was narrowly tailored to address the court’s specific concerns. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Notably, the court ordered parenting classes and individual counseling to address case related issues. Substantial evidence shows that father had a criminal history and a history of domestic violence in his relationship with mother. His case plan was fashioned to specifically address these issues.
As to visitation, father was never the custodial parent. Given his age, background, and limited relationship with Joshua, the limitation on visitation to unmonitored day visits does not appear unreasonable. If the visits are successful, father may request more liberal visitation, such as overnight and weekend visitation. In conclusion, the court-ordered requirements were reasonable under the circumstances.
DISPOSITION
The juvenile court orders made at the August 16, 2007 hearing are affirmed. No costs are awarded on appeal.
We concur: CROSKEY, Acting P. J., ALDRICH, J.