Opinion
H032055
4-24-2008
In re NADIA H. et al., Persons Coming Under the Juvenile Court Law SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. JORGE T., Defendant and Appellant
NOT TO BE PUBLISHED
Appellant Jorge T. appeals from two orders of the juvenile court relating to his daughters, Nadia H. and April H. Appellant contends the juvenile court abused its discretion by ordering him to participate in a domestic violence or anger management program as part of the reunification and family maintenance plans set forth in each childs disposition order (Welf. & Inst. Code, §§ 358, 360, 361, 361.5). We find no abuse of discretion and affirm the orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
I. Background
Appellant and Nadia P. (mother) are the parents of Nadia and April. Appellant and mother were married at the time the girls were born, but separated in 2000. While they were married, appellant drank and abused drugs. Appellant and mother argued as a result of his substance abuse and had a tumultuous relationship. After the couple separated, appellant moved to Nebraska and saw the girls only sporadically. Appellant eventually ended his drug and alcohol habit; as of June 2007, he stated he had "been clean and sober for 5 years." In approximately September of 2006, appellant moved back to California and began informal weekend visitation with his daughters. This led to heated words and to some disagreements between the parents regarding parenting decisions, particularly with regard to Nadia.
In May 2007, mother married Jose A. On May 20, 2007, at the end of a weekend visit with appellant, Nadia told appellant that Jose had touched her inappropriately on two occasions. Appellant confronted mother and called the police. The police talked to both Nadia and April and transferred them to the Childrens Shelter.
On May 22, 2007, the Santa Clara County Department of Family and Childrens Services (Department) filed two juvenile dependency petitions, alleging that Nadia (age 12) and April (age 10) came within section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse). The petitions alleged, in part, that Jose rubbed Nadias abdominal area under her shirt on one occasion. In a second incident, he rubbed his penis against her hip and offered her alcohol. April also reported that Jose made her uncomfortable, particularly when he looked at her as he was kissing her mother. The girls were afraid to return to mothers house. At that point, mother was not sure whether the molestation had occurred; she thought Nadia might have made up the story so that she could live with appellant. Just prior to Nadias disclosure, Nadia had instigated an argument between her parents about where she should live.
At the initial hearing on May 23, 2007, the juvenile court found a prima facie case that the children came within section 300, and released the girls to appellant. Prior to the jurisdictional hearing, the parties were referred to mediation. Both parents agreed to waive rights to a trial and submitted jurisdiction on the social workers report.
At the jurisdictional and disposition hearing on July 10, 2007, the dependency petitions were amended slightly, and the court sustained them as amended. Mother now believed Nadia and had severed contact with Jose. Per the Departments recommendation and the parties agreement during mediation, April was returned to her mother with family maintenance services. Appellant was provided family reunification services, at his request, and was granted visitation with April on alternate weekends. The court adopted the Departments case plan for appellant, including the recommendation that appellant complete a parenting class and a 16-week domestic violence program ("Domestic Violence Batterers group"), along with random drug testing and twice-weekly attendance at Alcoholics Anonymous meetings. Appellant objected only to the 16-week class. Counsel noted that defendant had never "exhibited any sort of violent behavior either to his wife or to the mother of the children or toward the children." The court ordered participation in the program over appellants objection.
At the July hearing, Nadias counsel disagreed with the recommendation to return Nadia to her mother and a contested disposition hearing was set. The court allowed Nadia to remain with appellant pending disposition. In a July addendum report relating to Nadia, the Department again recommended that appellant participate in a domestic violence program.
Prior to Nadias contested disposition hearing on September 5, 2007, the parties came to an agreement to share custody of Nadia with joint family maintenance services. Appellant again objected to the Departments recommendation of a 16-week domestic violence or "anger management" class, but mother objected to eliminating it. The court took testimony from both parents on the issue.
Mother testified that during her five-year relationship with appellant, he abused alcohol and drugs and they had many arguments. He pushed her to the bed once, and yelled at her in front of the girls on another occasion. She yelled at him a couple of times too. She said she was afraid of appellant. The social workers initial jurisdiction/disposition report noted that April remembered her parents fighting when she was younger. April confirmed, however, that appellant never hit her.
Appellant said he did not think he had a problem with anger. Although he yelled at mother and they called each other bad names, he never pushed her or hit her. He said that his alcohol use might have influenced his behavior, and noted that he no longer had an alcohol problem. He denied needing help controlling his anger, but thought he could "use some help" in that area.
The court adopted the Departments recommendations, including the 16-week program. A family maintenance review hearing (Nadia) and six-month review (April) were set for January 3, 2008. Appellant filed a timely notice of appeal on September 10, 2007 from the July 10, 2007 (April) and September 5, 2007 (Nadia) disposition orders "requiring [appellant] participate in a 16-week accountability/anger management program[.]"
Although the juvenile court ordered an "anger management" class, the court also referred specifically to the Departments written recommendation for a "Domestic Violence Batterers" program, as ordered on July 10, 2007 in regard to April. The written recommendation was changed in Nadias disposition order to an "anger management" program, presumably on the basis of the courts oral ruling. However, both parties understand the courts conflicting orders to require participation in only a single 16-week domestic violence or anger management program. Upon review of the record, we agree that the juvenile court did not intend to impose two different requirements, but only to reiterate the domestic violence/anger management requirement made in Aprils disposition order. We analyze the issue in accordance with this understanding.
II. Discussion
Appellant contends the court abused its discretion in requiring that he complete a domestic violence/anger management program because the program is not directed at the problems that led to the childrens dependency and because there is insufficient evidence that he has such a problem. The Department, in turn, submits that the orders were within the juvenile courts discretion. The children join in the Departments brief. We agree with the Department.
In general, "`[t]he juvenile court has broad discretion to determine what would best serve and protect the childs interest and to fashion a dispositional order in accordance with this discretion." (In re Neil D. (2007) 155 Cal.App.4th 219, 225 (Neil D.).) The courts order "`will not be reversed absent a clear abuse of discretion." (Ibid.)
Section 362, subdivision (a) states broadly that the court "may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child . . . ." Subdivision (b) of section 362 provides that if the court orders the parent or parents to "retain custody of the child subject to the supervision of the social worker, the parents . . . shall be required to participate in child welfare services or services provided by an appropriate agency designated by the court." (§ 362, subd. (b).) Subdivision (b) thus governs those orders directed at a parent who has custody of the dependent child—e.g., orders made as part of a family maintenance plan. Subdivision (c), in contrast, provides that the court may direct any parent, without mention of custody, "to participate in a counseling or education program" as the court "deems necessary and proper to carry out the provisions of this section." "The program in which a parent . . . is required to participate shall be designed to eliminate those conditions that led to the courts finding that the child is a person described by Section 300." (§ 362, subd. (c).) Appellant cites this subdivision in support of his argument. He contends that because only Joses actions, and mothers inaction, led to the dependency, there is no basis for appellants domestic violence/anger management order.
By referring to parents generally without mention of custody (as in subdivision (b)), subdivision (c) of section 362 encompasses those orders directed to a parent who does not have custody of the dependent child—e.g., orders made to facilitate reunification. We would expect that services provided for reunification would be focused on eliminating those conditions that led to the loss of custody. That same concern is not necessarily at the forefront in cases focused on family maintenance and the childs continued placement with the parents.
Here, with regard to Nadia, the parents were given joint custody and the domestic violence/anger management program was ordered as part of a family maintenance plan, not reunification. We question whether section 362, subdivision (c) is truly relevant in these circumstances. (But see In re Jasmin C. (2003) 106 Cal.App.4th 177, 180-182 [applying subdivision (c) in context of family maintenance services, and finding lack of substantial evidence to support parenting class order directed at non-offending parent].) However, because both parties presume that this provision of subdivision (c) applies in the case of both girls, and do not brief the issue, we do not reach a conclusion. We focus, instead, on the reach of subdivision (c).
The same program was ordered as part of family reunification in the case of April.
Although section 362, subdivision (c) directs that the services provided to parents be aimed at eliminating the conditions that led to dependency, it does not explicitly prohibit additional programs or services that may otherwise be in the childs best interest. In re Christopher H. (1996) 50 Cal.App.4th 1001 (Christopher H.), the primary case authority cited by both parties, analyzes section 362, subdivision (c) in the context of reunification services and is instructive. In that case, the juvenile court adjudged the child a dependent, removed him from the fathers custody, and ordered that reunification services be offered to the father. (Id. at p. 1005.) The father argued on appeal that the juvenile courts order in the reunification plan that he submit to random alcohol testing was improper because the court previously found that the fathers alleged alcohol use did not support a jurisdictional finding under section 300. (Id. at pp. 1005-1006.) The dependency petition was sustained on other grounds. (Id. at p. 1005.) Addressing the issue, the appellate court first observed: "The reunification plan must be appropriate for each family and be based on the unique facts relating to that family. [Citation.] Section 362, subdivision (c) states in pertinent part: The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the courts finding that the minor is a person described in Section 300. [Citation.] The department must offer services designed to remedy the problems leading to the loss of custody." (Id. at p. 1006, internal quotation marks omitted.) The court held, however, that if "the court is aware of other deficiencies that impede the parents ability to reunify with his child, the court may address them in the reunification plan." (Id. at p. 1008.) The record supported a finding of substance abuse, the fathers substance abuse posed a risk of interfering with his ability to care for the dependent child, and, thus, the court found that the random testing program was an appropriate part of the reunification plan. (See id. at pp. 1007-1008 [explaining that the alcohol testing will facilitate the fathers compliance with the rest of the reunification plan].)
Applying the rationale set forth in Christopher H. in the context of family maintenance, we conclude the juvenile court was authorized to issue those orders necessary to facilitate appellants successful compliance with the family maintenance plan. In short, the programs and services ordered, whether part of reunification or family maintenance, need not be limited to those aimed directly at eliminating the conditions that led to the dependency.
The juvenile courts finding that the domestic violence/anger management order was an essential part of the reunification and family maintenance plans is supported by the record. Although there is no evidence of physical violence beyond one incident of appellant pushing mother onto the bed, there are many references in the record to heated arguments between appellant and mother. Mother testified that they fought and had many disagreements, that appellant yelled at her in front of the girls, and that she was afraid of appellant. April described arguments between the parents. Appellants alcohol and drug abuse may have escalated the problem when the couple was together, but the arguments did not cease with appellants sobriety. Indeed, appellants increased involvement in the girls lives, although overwhelmingly a positive development, appears to have fueled anger and bad feelings between the parents. Now that the court has ordered appellants regular visitation with April and joint custody of Nadia, there will be additional opportunities for disagreement. Appellants participation in a domestic violence/anger management program is likely to aid in the success of the new family dynamic. As such, the order is relevant to ensuring Aprils and Nadias well-being and is in the childrens best interest.
The domestic violence/anger management requirement in the disposition orders is supported by the record and we find no abuse of the courts discretion.
III. Disposition
The July 10, 2007 and September 5, 2007 orders are affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
Duffy, J.