Opinion
E041352
4-26-2007
In re STEPHEN W. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. JOHN W., Defendant and Appellant.
Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant. Ruth E. Stringer, Interim County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent. Linda M. Fabian, under appointment by the Court of Appeal, for Minors.
NOT TO BE PUBLISHED
John W., the father of four minor children, appeals the juvenile courts dispositional order which removed the children from parental custody and failed to give custody to the previously noncustodial father. Father contends that the juvenile court erred because the evidence was insufficient to support a finding of detriment under Welfare and Institutions Code section 361.2.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The juvenile court also ordered father to undergo a psychological evaluation. He argues that the evidence was insufficient to support the juvenile courts order.
Finding no error, we affirm.
I. FACTS AND PROCEDURAL HISTORY
John W. and Brandi W. have four minor children: Stephen, born in April 1999; Morgan, born in October 1996; Johnathan, born in October 1995; and Elizabeth, born in April 1994. The parents separated before 2000, and they were divorced in 2005. Each parent has a significant other person in their life, and in their childrens lives.
At the time of the filing of the petitions, Stephen was 7, Morgan was 9, Johnathan was 10, and Elizabeth was 12.
Mother had a number of prior referrals to the San Bernardino County Department of Childrens Services (DCS) for child neglect. On July 18, 2006, the family had an open family maintenance case with DCS. On that date, deputies went to the family home for a welfare check and found the children unattended. The house was filthy and the children were living in squalid conditions. Mother was arrested for child endangerment, a violation of Penal Code section 273a, and the children were removed from the home and placed in foster care.
On July 20, 2006, separate section 300 petitions were filed for each child. Each petition alleged a failure to protect under section 300, subdivision (b), serious emotional damage under section 300, subdivision (c), and no provision for support under section 300, subdivision (g). With regard to father, it was specifically alleged that he failed to protect his children because he "reasonably should have known that the children were living in an unfit physical environment, thus subjecting the children to unnecessary risk of harm or injury." Each petition also alleged that father had left the children without providing for their support under section 300, subdivision (g).
The detention hearing was held on July 21, 2006. Father was present and counsel was appointed for him. He denied the allegations in the petition and requested that the children be placed with him. The court approved removal of the children, and their placement in a foster home. The social worker was directed to assess father and fathers home for possible placement.
The social workers jurisdictional/dispositional report was filed on August 7, 2006. It requested that the court find the section 300 allegations true as to father, but it also requested family reunification services be provided to father.
In support of the failure to protect allegation, the social worker reported that father came to the family home weekly, and was in the process of putting a new roof on the home. Father had admitted to the social worker that he was aware of conditions in the home, but felt that "he really couldnt do much to improve the childrens living arrangements." With regard to the lack of support allegation, the social worker reported that fathers ability to provide for the children was unknown, as was his ability to be a full-time parent.
The social worker also reported that father had an anger management problem, as evidenced by his kicking a dog in the presence of his son. The social worker recommended that father take a parenting program, although father felt he didnt need one.
The social worker found that the children were very disturbed children: "The children have been involved in inconsistent therapeutic services and subjected to extremely unhealthy living arrangements for years. The children have grown to distrust adults and especially those in authority positions. The children will require on-going therapy (consistent) and the possibility of psychotropic medication assessed."
A therapy report attached to the social workers report documents the serious emotional problems of the three older children. The report notes that two of the children had been referred to therapy after their father kicked the family dog and mother had the dog euthanized.
Despite being the subject of DCS referrals for years, DCSs efforts to aid the family had been fruitless. The social worker recommended that the children remain in foster care until "a respective parent has shown a level of cooperation to alleviate the problems facing the respective parent." According to the social worker, each parents actions had contributed to the childrens serious problems and, "[u]ntil the parents realize that they both had a part in the problem, the likelihood of effective change occurring is extremely guarded."
A jurisdictional/dispositional hearing was held on August 11, 2006, and the case was referred to mediation on the contested issues. A request for psychological evaluations of each of the parents was denied.
The mediation was held on August 14, 2006. At that time, father agreed to submit to the allegations against him, and agreed to take parenting classes. However, father contested the anger management component of the case plan. This issue was resolved prior to the pretrial conference.
A pretrial settlement conference was held on September 6, 2006, and the case was submitted on the petitions and the social workers reports. The court then found the allegations of the petitions under section 300, subdivisions (b) and (g) to be true as to father. The court also ordered a psychological evaluation of father.
Father then filed his notice of appeal of these orders.
A. Forfeiture Issue
Before discussing the merits of fathers appeal, we consider DCSs argument that father has forfeited his right to appeal the dispositional order. DCS argues that father failed to object to the jurisdictional or dispositional orders. Fathers only issue related to the anger management component of the case plan but, as noted above, that issue was resolved prior to the pretrial settlement conference. Thus, DCS argues that father cannot appeal the dispositional orders because he failed to raise his appellate issues in the juvenile court.
DCS cites In re S.B. (2004) 32 Cal.4th 1287. In that case, our Supreme Court considered a similar argument and held that the forfeiture rule was applicable to dependency proceedings: "It is true that, as [DCS] contends, 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. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]" (Id. at p. 1293, fn. omitted.) The court found that we, as an appellate court, have discretion to consider the merits, "[b]ut the appellate courts discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citation.]" (Ibid.)
DCS argues that no legal excuse exists here. Since father "agreed to jurisdiction, disposition and the case plan in a mediation agreement, and failed to object at the jurisdictional/dispositional hearing," DCS submits that a forfeiture occurred.
We disagree with DCSs premise. The ambiguity apparently results from a poorly drafted term in the mediation agreement. With respect to the petitions jurisdictional allegations against father, the mediation agreement states: "Father will submit to this allegation." DCS reads this to mean that father agreed to the jurisdictional allegations made against him.
A handwritten version of the agreement, signed by father and the mediator, states: "Father will submit" after one allegation and "Father submit" after the second allegation. The challenged phrase was apparently rephrased by the mediator when the final report was written. Father did not sign the mediators final report.
However, we read the mediation agreement to mean that father was willing to submit the issue to the juvenile court without further proceedings. Submitting an issue is not a waiver of appeal rights: "This court has strictly enforced unambiguous written stipulations in the juvenile court, notwithstanding parents claims that the forms are not intended to bind the parties but to guide the trial court. [Citations.] The situation is less clear, however, where the party merely submits to the findings rather than stipulating to them. In In re Richard K. (1994) 25 Cal.App.4th 580 . . . , the court explained: `[I]t is not uncommon in dependency proceedings for a parent to "submit" on a social services report. [Citation.] By submitting on a particular report or record, the parent agrees to the courts consideration of such information as the only evidence in the matter. Under such circumstances, the court will not consider any other evidence in deciding whether the allegations are true. [Citation.] [¶] Notwithstanding a submittal on a particular record, the court must nevertheless weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved. [Citation.] In other words, the parent acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion. [Citation.] Thus, the parent does not waive for appellate purposes his or her right to challenge the propriety of the courts orders. [Citations.]" (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1186.)
Father initially denied the allegations of the petitions and specifically asked for placement of the children with him on family maintenance.
After the mediation, father submitted a pretrial at issue memorandum in which he stated his factual contentions: "Father disagrees [with] the allegations [and] is seeking dismissal and/or amendments to the allegations. Also, father disagrees [with] placement." Under the heading "Specific remedies sought," father stated: "Dismissal and/or amendments to the allegations. Also, return of the minors to father [with] family maintenance."
Thus, at the pretrial settlement conference which followed the mediation, father began by acknowledging that he had signed a waiver of rights form. He then agreed to waive his rights and submit on the petition. This is not the same as agreeing to the allegations of the petition. It merely means that he did not wish to present evidence on the issue at a contested hearing. Instead, he was willing to have the juvenile court decide the issues on the basis of the social workers reports and other information already presented to the court. (Rosa S. v. Superior Court, supra, 100 Cal.App.4th at p. 1186.) Father apparently thought further evidence was not necessary because he had a strong legal position as a nonoffending noncustodial parent who was entitled to custody under section 361.2, subdivision (a). Although he was wrong, he certainly raised the issue in the juvenile court, and he is not precluded from raising it on appeal.
Our reading of the ambiguous phrase in the mediation report is confirmed by the waiver of rights form itself. It states that father wishes to "submit the petition on the basis of the social workers or probation officers report and other documents, if any." The form also warns father that if he submitted the petition on the report, "the court will probably find that the petition is true."
Despite the warning, we think it is relatively clear that father did not acquiesce in the jurisdictional and/or dispositional issues. The forfeiture rule is therefore inapplicable.
B. Sufficiency of the Evidence to Support a Detriment Finding Under Section 361.2
Section 361.2 provides: "(a) 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."
"A detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm. [Citation.]" (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.) "A courts ruling under section 361.2, subdivision (a) that a child should not be placed with a noncustodial, nonoffending parent requires a finding of detriment by clear and convincing evidence. [Citation.] We review the record in the light most favorable to the courts order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that that [sic] 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. [Citation.]" (Id. at p. 1426; see also In re Marquis D. (1995) 38 Cal.App.4th 1813, 1827-1829.)
Father argues that the trial court did not make a clear detriment finding, as required by section 361.2, subdivision (c), and erroneously treated him as a custodial parent under section 361. He points out that the courts order states, for each minor, that "[m]inor removed from parents and placed in the custody of director of DCS." (Capitalization omitted.) He concedes, however, that "the courts decision supports at least the implication that the court found detriment to the children in being placed with the father."
DCS relies on the trial courts express adoption of the findings of the social workers August 11, 2006, report. The adopted findings consist of general findings supporting removal and a specific paragraph directed at father.
The general findings tend to support fathers argument. They recite that "[c]ontinuance in the home of the parents respective homes [sic] would be contrary to childrens welfare. Clear and convincing evidence shows that the children should be removed from the physical custody of the parents . . . ." (Italics added.) This is incorrect because mother had physical custody of the children, and there was no evidence in the record concerning the state of fathers home.
The specific finding states: "The father, John [W.], the previously non-custodial parent(s) (sic) of the children, desires to assume custody of the children. However, there is clear and convincing evidence that placement with the father would be detrimental to the safety, protection, or physical or emotional well-being of the children in that Mr. [W.] has not been a parent to the children in the last six years, choosing to have minimal contact with the children."
Despite the weaknesses in the social workers report, and the unclear determinations of the juvenile court when it adopted the report, we must evaluate fathers claim by considering the evidence before the court in order to determine whether it is substantial evidence to support a finding of detriment.
Focusing on the children, we first note that these children have sustained severe emotional damages from the circumstances of their upbringing. For example, after the children were placed in foster homes, the social worker reported that: "The childrens adjustment has been rocky, with open rebellion, a lack of cooperation, and disrespect. All of the children, at times, have refused to eat, bath[e] and maintain personal hygiene. The children have had problems with enuresis and the boys have made threats to kill their social worker . . . ." Two of the children were referred to therapy after father kicked the family dog. There is no indication in the record that father would be able to deal with the special needs of these children.
Second, the juvenile court, by finding the section 300, subdivisions (b) and (g) allegations true as to father, expressly found that father had failed to protect the children from serious physical harm, and that he had not supported the children. Father admitted to the social worker that he came to the childrens home weekly, and he was in the process of putting a new roof on the home. Father conceded that he was aware of the living conditions in the home but "felt his hands were tied and that he really couldnt do much to improve the childrens living arrangements." Father "had only taken the children, for three [or] four days, a couple of times in the last six years. Currently, Mr. [W.]s ability to adequately address the needs of his children is unknown, as is his ability to be a full-time parent." The size and condition of fathers home was unknown and, despite fathers requests, a background check had not been completed on fathers girlfriend. There was, therefore, no evidence in the record from which the juvenile court could conclude that father could attend to the needs of the children, or that fathers home was a suitable home for the children.
Third, the social worker reported that: "At no time has the [social worker] heard from either parent, `What will it take to get my kids back, what changes need to be made? What instead has been heard by the undersigned social worker is denial, anger and a non-acceptance that the parents had any part in the problem. The parents do not see that their actions, or lack of actions, contributed to the situation and the ultimate neglect of their childrens needs. Until the parents realize that they both had a part in the problem, the likelihood of effective change occurring is extremely guarded."
The social workers reports, and the other evidence cited above, provide substantial evidence to support the juvenile courts implied finding of detriment under section 361.2, subdivision (a). Despite years of family maintenance and other services provided by DCS, the childrens emotional damage had grown worse. The record shows that father, by his actions and inactions, bore some responsibility for the emotional damage suffered by the children. The record does not show that placement with father would protect the children from further damage. The sustained allegations of the petition as to father show the opposite. In other words, we agree with DCS that father "is not a non-offending father, merely a non-custodial father."
However, we cannot condone any shortcut which ignores the juvenile courts responsibility to make specific detriment findings, as required by section 361.2, subdivision (c). In addition to stating the specific basis for its detriment finding, such an explanation would have discussed why the court did not choose the alternative placement choices stated in section 361.2, subdivision (b). Nor can we condone the social workers treatment of the noncustodial father as if he was as responsible for the deplorable conditions in the home as a custodial father.
"Records in dependency cases increasingly suggest that bench officers are adopting short cuts in an attempt to address overwhelming caseload demands. But dependency cases are among the most compelling that come before the superior court, and the inherent tension between the rights of the parent and the best interests of the child sometimes requires more time to resolve than presently available. If escalating numbers are impacting the effective management of dependency cases, it may be appropriate for the Presiding Judge to consider affording the juvenile court more judicial resources." (Rosa S. v. Superior Court, supra, 100 Cal.App.4th at pp. 1187-1188.)
Father relies on In re John M. (2006) 141 Cal.App.4th 1564. In that case, the juvenile court based its detriment finding on the minors wishes, his need for services, his relationship with his baby sister and members of his extended family in San Diego, his lack of a relationship with his father, "the paucity of information about" his father, and his mothers reunification plan. (Id. at p. 1570.) The appellate court found that these factors did not support the detriment finding. (Ibid.) In In re John M., the father lived out of state, and had not been in contact with his son for four years. (Id. at p. 1571.) While some of the courts discussion supports fathers position here, the fact remains that father here was not an uninvolved bystander. He was found to have been part of the childrens problem, and he was an offending father, not a nonoffending parent. The distinction is significant, and we conclude that the juvenile courts implied detriment finding is supported by substantial evidence.
C. Sufficiency of the Evidence to Support an Order for Psychological Evaluation
Father next contends that the evidence was insufficient to support the juvenile courts order that he undergo a psychological evaluation as part of his reunification case plan. He argues that, because of his liberty and privacy interests, a psychological evaluation should not be ordered unless there is some evidence of mental illness on his part. According to father, an evaluation should not have been part of his reunification plan because the plan should have focused on the conditions which led to removal of the children from mothers home, i.e. the condition of the home and mothers behavior.
DCS disagrees. It contends that the court may find that a psychological evaluation may be ordered after a jurisdictional finding as a necessary part of a reunification plan.
DCS cites Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195. In that case, the mother objected to a psychological evaluation prior to the jurisdictional hearing and the court held that the juvenile court "may not order a parent to submit to a psychological evaluation for discovery purposes before his or her child is adjudged a dependent under Welfare and Institutions Code section 300 . . . ." (Id. at p. 197, fn. omitted.) In discussing the issue, the court also said: "Evaluations are generally ordered as part of a reunification plan after the child is declared a dependent. [Citation.] Frequently after a finding of jurisdiction a parent may be ordered to undergo an evaluation to determine if the parent is mentally disabled and if reunification services are likely to prevent continued abuse and neglect. [Citation.] Similarly, where the child is declared a dependent because of parental mental illness, the parent may subsequently be evaluated to determine if the parent is incapable of utilizing reunification services. [Citations.] Institutionalized parents have been evaluated postjurisdiction to determine whether they are capable of raising their child. [Citation.]" (Id. at p. 201.) In dicta, the court went on to say: "Only after a finding the child is at risk, and assumption of jurisdiction over the child, do a parents liberty and privacy interests yield to the demonstrated need of child protection. At that stage, where the aim is to reunify parent and child, expert opinion on the cause and extent of mental illness may be required to ascertain which services will eliminate the conditions leading to dependency." (Id. at pp. 202-203.)
Reunification services are routinely furnished to a presumed father after removal of children from the mothers home. (§§ 361.5, 16507.) "When counseling or other treatment services are ordered, the parent or guardian shall be ordered to participate in those services, unless the parents or guardians participation is deemed by the court to be inappropriate or potentially detrimental to the child." (§ 361.5, subd. (a).) When services are ordered, the parent must participate in them: "At the dispositional hearing, the juvenile court must order child welfare services for the minor and the minors parents to facilitate reunification of the family. [Citations.] The court has broad discretion to determine what would best serve and protect the childs interest and to fashion a dispositional order in accord with this discretion. [Citations.] We cannot reverse the courts determination in this regard absent a clear abuse of discretion. [Citation.] [¶] 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 by Section 300. [Citation.] [DCS] must offer services designed to remedy the problems leading to the loss of custody. [Citation.]" (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1007.) We have held that, if a parent refuses to comply with a valid order for a psychological evaluation, the juvenile court has the authority to deny reunification services to that parent. (In re C.C. (2003) 111 Cal.App.4th 76, 80.)
Services must be provided unless one of the exceptions stated in section 361.5, subdivision (b), is applicable. (Rosa S. v. Superior Court, supra, 100 Cal.App.4th at p. 1188.)
The question here is whether the order was valid, i.e., whether it was supported by substantial evidence. Initially, we disagree with fathers position that the only problem was mothers dirty home, and that problem had nothing to do with his mental condition. Although the filthy living conditions in mothers home led to the removal of the children, the issue is whether father is a suitable person to have custody, i.e., whether custody would be detrimental to the childrens safety or well-being. (§ 361.2, subd. (a).)
As discussed above, the record supports the conclusion that father was not a nonoffending parent. He was found to have failed to protect and support his children. Although he requested custody, there was no information in the record as to his home and, despite his requests, there had been no record check on his girlfriend. But there was evidence that father may have an anger management problem: after he kicked the dog, two of his children were referred to therapy. The therapist recommended psychological evaluations for the entire family. More importantly, fathers knowledge of the childrens living conditions, and his perceived inability to do anything about them, raised significant questions about his ability to protect the children in the future. As the social worker put it: "Until the parents realize that they both had a part in the problem, the likelihood of effective change occurring is extremely guarded."
Father relies on In re Basilio T. (1992) 4 Cal.App.4th 155. In that case, parents argued that it was improper for the court to order drug testing and substance abuse therapy as part of the reunification plan. (Id. at p. 159.) The appellate court agreed, finding no evidence that the parents had a substance abuse problem: "A 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 by Section 300." (Id. at p. 172.)
Although we do not disagree with In re Basilio T., we are not persuaded by it. Unlike In re Basilio T., the record here contains specific findings that father failed to protect his children, and that he had at least a potentially serious anger management problem. Accordingly, we conclude that the juvenile court did not abuse its discretion in fashioning an individual reunification plan which required father to submit to a psychological evaluation. The court was not necessarily seeking evidence of mental illness, but rather was apparently trying to determine which reunification services would eliminate the conditions which led to dependency findings against father.
A psychological evaluation would also be useful in determining whether father could effectively assume custody of four children who had been emotionally traumatized by their living conditions, and who each had significant behavioral problems as a result. The task ahead is daunting, and the juvenile court did not abuse its discretion in using all the tools available to it to determine if father could assume custody without further endangering the emotional well-being of the children.
II. DISPOSITION
We note that minors counsel agrees that father has not demonstrated juvenile court error, and minors counsel therefore requests that the juvenile courts orders be affirmed.
The juvenile courts orders are affirmed.
We concur:
Ramirez, P.J.
Hollenhorst, J.