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In re William O.

Court of Appeal of California
Apr 22, 2009
No. B209426 (Cal. Ct. App. Apr. 22, 2009)

Opinion

B209426.

4-22-2009

In re WILLIAM O., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. WILLIAM S., Defendant and Appellant.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.

Not to be Published in the Official Reports


Appellant William S. (father) appeals from a juvenile court order terminating reunification services with his son, William O. (William), born July 1992, and returning William to his mothers (Camille O. (mother)) custody. He contends that the juvenile court erred when it found that reasonable services had been provided to father because it failed to ensure regular visitation between father and William.

Because we find no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Detention and Initiation of Dependency Proceedings

On November 16, 2006, the Department of Children and Family Services (DCFS) received a referral alleging physical and emotional abuse to William. When the social worker responded and visited fathers home, the social worker learned that father had full custody of his two children, William and Elizabeth O. (Elizabeth), although Elizabeth had chosen to reside with mother.

Father denied the abuse allegations. He claimed that William and Elizabeth did not like residing with him because there was structure in his house, whereas mother provided no structure for the children.

The social worker then interviewed William. William informed the social worker that one time, he brought his CD player outside and father became upset; father hit William with an open hand on the chest, causing William to stumble backwards. Another time, when William brought home his school progress report, which revealed that he was getting two Ds and one F, father "started hitting him all over the upper part of his body, until he ran upstairs." William also reported that father calls him "retarded if he tells [William] to do something and [he does] not do it right." Father has also called William a "`fuckin retard." William told the social worker that he does not talk back to father because he is afraid of what father will do to him.

As for statements William made in prior referrals, William admitted that he lied because father instructed him to do so. Had he told the truth, father would have hit him.

This was not the first time DCFS had gotten involved with this family. William and Elizabeth were previously dependents of the juvenile court pursuant to a sustained petition under Welfare and Institutions Code section 300, subdivision (b). Jurisdiction was terminated in 1997. A subsequent petition was filed and allegations were sustained on March 29, 2004. That case was ordered terminated on September 24, 2004.

William also indicated that he had been suffering anxiety attacks.

In a subsequent interview, William repeated the prior allegations and added new details. For example, William reported an incident wherein father struck him with a golf club handle on his legs. On another occasion, when William failed to take out the trash, father dumped the trash over Williams head and made him pick it up. William reiterated that father referred to him as a "`retard" and "`mother fucker."

William also reported fathers drug use, stating that father smokes "weed" and has a "`weed pipe on the entertainment unit."

Williams adult half-sister, Christina K. (Tina), confirmed Williams allegations of abuse. She described father as "crazy and violent." She stated that father had always been physically and emotionally abusive to the children, especially William. William was scared of father. Not only did father hit William, but he called William derogatory names as well. She was concerned for Williams safety.

Tinas husband, Aaron K. (Aaron), repeated to the social worker what Tina had stated. He indicated that he and Tina were willing to care for William.

Elizabeth also confirmed the abuse charges, asserting that father physically and emotionally abused William.

DCFS detained William, and on November 22, 2006, filed a section 300 petition on behalf of William, alleging that the child had suffered physical and emotional abuse at the hands of father and that father had abused drugs. At the detention hearing, the juvenile court found a prima facie case for detaining William. DCFS was ordered to provide family reunification services to the parents, as well as monitored visits.

Jurisdiction and Disposition Report; First Amended Petition

In its December 22, 2006, jurisdiction/disposition report, DCFS reported that the social worker conducted an interview with William. According to William, father physically abuses him frequently; he has hit him in the stomach, he hit him with a golf club on his legs, he smacked him on the head, and he pushed William down the stairs.

Elizabeth, Tina, Aaron, and mother confirmed the allegations of physical and emotional abuse.

The social worker also interviewed father. Father stated that he was "tired of DCFS and wants DCFS to recognize what he is really dealing with." He accused William of being manipulative and making false allegations against him. He denied ever hitting his son or striking him in the chest or stomach; he stated that he never hit William with a golf club. While he once poured a dustpan of paper dots on Williams head, it was a joke, and he did not make William clean up the area.

As for the prior referrals, father stated that they were all false.

The December 22, 2006, hearing was continued to January 30, 2007, for trial.

DCFS also filed a first amended petition, alleging serious physical harm (§ 300, subd. (a)), failure to protect (§ 300, subd. (b)), and serious emotional damage (§ 300, subd. (c)).

Last Minute Information Report

On January 30, 2007, DCFS filed a last minute information report. DCFS advised the juvenile court that father attempted three times to conduct "welfare check[s]" on Elizabeth at mothers home; twice the police were involved. As a result, mother filed a request for a restraining order against father.

Father informed DCFS that he was uncertain whether he wanted William back.

January 30, 2007, Hearing

At the January 30, 2007, hearing, the juvenile court sustained the allegations of the first amended petition against father, finding that father had physically abused William; that father had physically abused mother on many occasions; that father frequently used marijuana and kept drug paraphernalia in the family home within Williams access; and that father emotionally abused William by calling him derogatory names, causing him to feel depressed and anxious. William was declared a dependent and placed in mothers custody. Mother was ordered to make William available for visitation.

Furthermore, the juvenile court ordered services for both parents, including that father participate in individual counseling to address anger management, child abuse, and domestic violence; participate in conjoint counseling with William; and submit 10 clean drug tests, with the caveat that if father tested dirty or missed any tests, he would be required to complete a drug treatment program.

DCFSs Supplemental Petition (§ 387)

On May 22, 2007, DCFS filed a supplemental petition pursuant to section 387 against mother after she had a nervous breakdown for which she was hospitalized. During DCFSs investigation, mother reported that she had not yet enrolled William in individual and conjoint counseling. She also had refused to allow William to visit father, claiming that father had violated the restraining order, that William feared him, and that father was wanted by the FBI for murder. William, however, agreed to have visits with father, if monitored by a DCFS social worker. DCFS detained William with a relative.

At the hearing on the section 387 petition, the juvenile court sanctioned the detention, ordered that conjoint counseling between father and William commence immediately, and gave DCFS discretion to liberalize fathers visits.

June 26, 2007, Jurisdiction/Disposition Report and Hearing

In its June 26, 2007, jurisdiction/disposition report, DCFS reported regarding its interviews with William, father, and others. William did not notice mothers emotional or mental problems. She had always taken good care of him. However, he was afraid to go home with father; he did not feel safe because he did not know what father would do to him. William stated that father still has a bad temper and anger issues. He only visits father because the juvenile court so ordered; he does not want to see father.

William was finally enrolled in counseling on June 13, 2007. His therapist, Dr. Susan Ring, reported that she wanted to get to know William before he started conjoint family counseling. Later, Dr. Ring wrote a letter indicating that it was premature to begin conjoint sessions and doing so would cause further emotional harm to William.

Father visited William on Wednesday mornings for one hour. During the monitored visits, William appeared nervous and uncomfortable. William told the monitor that he only participates in the visits because of the juvenile court orders; he thought it should be up to him whether he visits father.

Meanwhile, father submitted 10 clean drug tests and was participating in individual counseling. According to fathers therapist, Dr. David Walter, father had been compliant and consistent with his attendance. He was working with father on his emotional and psychological situation. Dr. Walter believed that if William did not want to go home with father, he should not do so.

Regarding the abuse allegations, father continued to insist to Dr. Walter that the allegations were fabricated. Father was looking forward to commencing conjoint counseling with William.

At the June 26, 2007, hearing, the juvenile court reiterated that (1) DCFS has discretion to allow father unmonitored visitation, and (2) conjoint counseling was to start forthwith.

Six-month Review

By the time of the six-month review hearing on July 31, 2007, William had remained detained in the home of a relative from mothers custody for two months. William was doing well in the relatives care; he had completed ninth grade and was following household rules.

Meanwhile, father continued to attend individual counseling with Dr. Walter. He had not, however, enrolled in parenting classes. DCFS reported that father would begin conjoint family counseling with William on July 30, 2007.

Regular monitored visits between father and William continued as well, although William appeared "nervous and uncomfortable" during the visits. William reiterated to the social worker that he only visits with father because he was required by the juvenile court to do so. He also told the social worker that "it should be up to him if he wants to visit his father or not."

At the July 31, 2007, hearing, the juvenile court continued the matter to August 9, 2007, for a progress report to address conjoint family counseling between father and William. According to DCFS, "[i]f the conjoint family counseling ha[d] not started, DCFS [was] to explain why."

Adjudication of the Section 387 Petition and Six-month Review

In an interim review report filed for the August 9, 2007, hearing, DCFS reported regarding its efforts to enroll William in appropriate therapy. Finally, William was enrolled in counseling with Dr. Ring in June 2007. After William attended a session with Dr. Ring, the DCFS social worker contacted her to ask about conjoint sessions with father. Dr. Ring stated that she needed to get to know William more before beginning conjoint sessions. Later, Dr. Ring forwarded a letter to the juvenile court explaining why she recommended against beginning conjoint sessions immediately.

Thereafter, there were problems with payment for therapy, making it difficult to find an appropriate therapist to work with this family. Eventually, DCFS was able to secure conjoint counseling through McKinley Childrens Center, and the sessions began on August 1, 2007. According to father, the session was "`okay," even though the caregiver and William arrived half an hour late. Father reported that William "was forced to lie about the physical abuse against him by . . . Tina." Father believed that "the truth would come out from his son through conjoint family counseling."

According to the therapist, Joyce D. Harden (Harden), the first session went well. Father and William were "willing to work on the family issue." Harden opined that father and William were invested in strengthening their relationship and motivated to work in therapy to achieve their goal.

At the August 9, 2007, hearing, the juvenile court made findings relating to the section 387 petition against mother and ordered William removed from her custody. It did allow mother unmonitored day visits, with DCFS discretion to allow for weekend overnight visits. The juvenile court also conducted its six-month review. Fathers visits remained monitored for a minimum of three times per week, three hours each visit. The juvenile court ordered further services for the family, and the matter was continued for a 12-month review hearing.

12-month Review

For the February 7, 2008, 12-month review hearing, DCFS reported that William was doing well in his relative caretakers home, although he received an "F" in Geometry and was receiving tutoring. The caregiver indicated that William follows household rules and was a "`good kid."

While father had completed his court-ordered 10 random drug tests, he stopped attending individual counseling with Dr. Walter. He was continuing to attend conjoint family counseling with William. According to the conjoint therapist, William and father had trouble communicating and expressing their feelings. While both William and father had forgiven each other, father continued to insist that the abuse allegation was false. In fact, father "takes every opportunity in the sessions to focus on being the victim of false accusations and being victimized by DCFS, as well as minimizing the difficulties his son is having." Father also informed the therapist that he refused to comply with juvenile court orders or the DCFS case plan regarding parenting classes.

As for William, he had not recanted his accusations of abuse. And, he displayed significant anxiety and stress over his past trauma and had difficulty controlling his anger when discussing issues regarding father when father was not present.

With respect to visitation, although the juvenile court had increased fathers visitation to three times per week (three hours each visit), father elected not to exercise his full visitation rights because he did not want to interrupt Williams school schedule. Therefore, father agreed to one hour of monitored visitation.

According to the visitation monitor, at the start of the visits, William appeared nervous and uncomfortable. In fact, William informed the monitor that he only visited with father because the juvenile court ordered him to do so. However, after a few of the monitored visits and conjoint counseling had begun, William appeared more relaxed and comfortable during the visits.

At the December 13, 2007, visit, father and William were happy to see each other. The monitor reported that the visit went well.

William failed to show for his visits on December 20, 2007, and December 27, 2007; Williams caretaker informed the social worker that William did not want to attend the visits. The social worker instructed the caretaker to ensure that William see father for every scheduled visit.

While father appeared for the January 3, 2008, visit, William did not.

Father and William visited on January 10, 2008. William was "very happy" to see father. William denied stating that he did not want to see father anymore.

They also visited on January 17, 2008. William expressed his discontent with DCFS involvement in his life.

For the upcoming hearing, William informed the social worker that ultimately he wanted to live with mother. He wanted to stay with his relative caretaker until mother "`finishe[d] what she need[ed] to do." He also stated that he did not mind unmonitored visitation with father.

At the February 7, 2008, hearing, the juvenile court ordered DCFS to provide William, father, and mother with family reunification services. Conjoint therapy between William and father was ordered to continue as well. DCFS was given discretion to further liberalize mothers and fathers visitation. Notably, the juvenile court found that reasonable services had been provided through that date.

The matter was continued for an 18-month review.

18-month Review (§ 366.22)

For the 18-month review hearing, DCFS reported that father had not been attending individual counseling. While father was "`o.k." with William living with his current caretaker, he "adamantly disapprove[d]" of mother "regaining custody of William." He did not believe that mother had the "mental capability to care and supervise" William. Father blamed "all the problems" on mother, "calling her crazy and an unfit parent." Father believed that mother manipulated the system and coerced William to lie about the physical abuse. He denied that William was being abused or neglected. He stated that William was not hit on the head, stomach, chest, or leg. Father reported that if William were severely abused by him, he would have sustained brain damage.

Regarding conjoint counseling, father and William attended four sessions; they had not attended a conjoint session since December 2007. While several appointments were scheduled that father agreed to attend, he then did not show up or cancelled. The therapist recommended terminating conjoint therapy until both parties were willing to participate in consistent family services.

Father refused to attend parenting classes and anger management classes, stating: "`I already completed parenting program in 2005 and Im not going to do any of the anger management classes. I plan to sue [DCFS] for violating my civil rights. [William] should never be removed from my custody. There is no spec of detriment on my son. I need a real judge and jurors to hear my case."

William indicated that he did not want to be reunified with father. "He does not have a good relationship and communication with . . . father." According to his therapist, William "continue[d] to show signs of anxiety and depression surrounding trauma from his past experiences, his current strained relationship wit[h] . . . father and distant relationship with . . . mother."

As for visitation, DCFS reported that father and mother sporadically visited William.

In light of the foregoing, DCFS recommended that William remain in suitable placement with his relative caregiver and that family reunification services be terminated.

Before the May 21, 2008, hearing, DCFS provided the juvenile court with last minute information. Specifically, on May 19, 2008, William disclosed that he was not ready for any visitation with father at that time. He stated that "he would become ill and get[] very nervous when he [had] thoughts of seeing . . . father. William complained of having a headache or stomach pain. The caretaker reported that William [was] afraid of . . . father due to his past abuse. The caretaker stated that William [had] been having difficulty staying focus[ed] in school and sleeping. Father [had] threatened to send William to group home placement and get[] William to have drug/alcohol testing. William stated that it [was] very difficult for him to express his feelings and reasons why he [did] not want to see . . . father. William is not mentally and emotionally ready to have visits[] with father, and he hopes that the [juvenile] court allows for him to have [discretion] to visit . . . father."

At the May 21, 2008, hearing, the juvenile court set the matter for contest.

Interim Review Report

DCFS reported that since the last hearing, William continued to refuse to have monitored visitation with father. Although father appeared for the visits, William and his caretaker did not appear or call to cancel the appointments. Father believed that William was being manipulated by mother and that mothers family was keeping William away from him.

On June 12, 2008, father left a message for the DCFS social worker, stating that his rights had been violated and that he was entitled to weekly visitation with William. He accused DCFS and Williams caretaker of being in contempt of court for failing to arrange visitation. On June 30, 2008, father left another message to the DCFS social worker, stating that he had not seen William in two months and that he was going to get the police involved.

Also on June 12, 2008, William informed the social worker that he no longer wanted to attend individual counseling. He felt that he had resolved his past issues and did not want to be constantly reminded about fathers abuse. He had overcome his fear and anxiety knowing that he was not going to be returned to fathers custody.

Meanwhile, father was still not attending individual counseling, and he and William had not participated in conjoint counseling since December 2007.

In light of the foregoing, the social worker recommended that fathers reunification services be terminated.

July 16, 2008, Continued Section 366.22 Hearing

Father arrived late for the July 16, 2008, hearing; his attorneys request for a continuance was denied.

After receiving various reports into evidence and entertaining oral argument, the juvenile court ordered that William be returned to mothers home with family maintenance services to mother. Although father was granted monitored visitation, his reunification services were terminated.

Fathers appeal

On July 17, 2008, father timely filed a notice of appeal.

DISCUSSION

I. Father forfeited his right to appeal the juvenile court order terminating his reunification services.

DCFS argues that because father failed to argue at the July 16, 2008, hearing that he was denied reasonable reunification services, he has forfeited that argument on appeal. We agree.

It is well-established that courts of appeal will ordinarily not consider challenges to a lower court order if an objection could have been made, but was not. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Dependency matters are not exempt from this rule. (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962; In re Christina L. (1992) 3 Cal.App.4th 404, 416.)

On appeal, fathers sole claim is that he did not receive reasonable reunification services. However, father failed to raise this objection below. At the July 16, 2008, hearing, fathers attorney only asked that William be returned to his custody. In support of that request, he argued that he had substantially complied with individual counseling; he attended conjoint counseling sessions with William; he had completed his parenting classes; and he participated in "drug rehab with random testing." Father never asserted that he was denied reasonable reunification services. Having failed to raise the issue below, father is precluded from arguing it on appeal.

Father claims that this issue has been preserved for appeal because, throughout the course of the dependency proceedings, he repeatedly raised the issue of visitation. We are not convinced. While father may have left telephone messages for the DCFS social worker complaining about the lack of visitation, the evidence also demonstrated fathers lack of interest in reunifying with William. For example, in August 2007, although he was entitled to three visits per week (three hours each visit), father elected to visit with William only once a week. Later DCFS reports reflect that father only "sporadically" visited William and was not committed to conjoint counseling with his son And, at the prior 12-month review hearing, the juvenile court expressly found that DCFS had made reasonable efforts to reunite father and William. Yet, father made no objection.

Under these circumstances, we cannot conclude that the issue of visitation was before the juvenile court at the July 16, 2008, hearing. Accordingly, the issue has been forfeited on appeal. Our analysis could stop here.

II. The juvenile court was not authorized to extend reunification services past the 18-month statutory limit.

Even if the issue had been properly preserved for appeal, we would still affirm the juvenile courts order; the juvenile court could not extend reunification services as father now requests.

Section 361.5 provides, in relevant part: "[C]ourt-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian." (§ 361.5, subd. (a)(1)(C)(2).) The reason for this rule is simple. There "must be a limitation on the length of time a child has to wait for a parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) Thus, absent extraordinary circumstances, a juvenile court abuses its discretion by extending reunification services beyond the 18-month maximum. (Los Angeles County Dept. of Children Etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1091; In re N.M. (2003) 108 Cal.App.4th 845, 856.) "Exceptional circumstances" involve "some external factor which prevented the parent from participating in the case plan." (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.)

Here, William was first detained on November 22, 2006. Father was granted reasonable reunification services through July 16, 2008, slightly more than 18 months of services. During that time, services were fully available to father, and he was fully capable of participating in the services. (See In re N.M., supra, 108 Cal.App.4th at p. 856.) There is no evidence or argument that exceptional circumstances warrant further reunification services. Accordingly, pursuant to section 361.5, subdivision (a), the juvenile court could not grant father any further reunification services.

III. Regardless, the appellate record confirms that father was provided with reasonable reunification services.

Setting aside the foregoing, for the sake of completeness, we consider whether father was afforded reasonable reunification services.

"[O]ur sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile courts finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) "The adequacy of a reunification plan and of the departments efforts are judged according to the circumstances of each case." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.) "Reunification services need not be perfect. [Citation.] But they should be tailored to the specific needs of the particular family. [Citation.]" (In re Alvin R. (2003) 108 Cal.App.4th 962, 972.) "As this court has previously explained, `to make the requisite findings, the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult. . . ." (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 794.)

Visitation is a necessary component of any reunification plan. (In re S.H. (2003) 111 Cal.App.4th 310, 317.) It is the juvenile courts responsibility to ensure that regular parent-child visitation occurs. (Ibid.)

Fathers sole contention is as follows: DCFS "improperly delegated the decision as to whether or not William would visit [him] to William and the maternal relatives . . . and the juvenile court failed to ensure its visitation orders were followed." We disagree.

As set forth above, in August 2007, it was father who chose not to exercise his full visitation rights because he did not want to interrupt Williams school schedule. Subsequent DCFS reports reveal that father only sporadically visited William, occasionally calling William and telling him that he was very busy with work. He visited William "whenever he [had] the time."

As pointed out by DCFS, father does not challenge any other aspect of the reasonableness of services. Thus, while father asks that reunification services be reinstated, he does not explain how the juvenile court erred in terminating those services. Nor could he. After all, father was the one who chose to discontinue individual counseling. Father also was the one who elected to discontinue conjoint counseling sessions with William. And, father adamantly refused to attend any parenting or anger management classes. Under these circumstances, father has offered no basis to reverse the juvenile courts order terminating reunification services.

In re Hunter S. (2006) 142 Cal.App.4th 1497, cited by father, is readily distinguishable. In that case, a mother appealed from an order terminating her parental rights and denying her request for family reunification services based on the juvenile courts decision to allow the child, who was five years old at the time of the initial detention, to determine if visits should occur. (Id. at p. 1500.) The Court of Appeal concluded that the juvenile court wrongfully delegated discretion over visitation. (Id. at pp. 1500, 1505.)

In contrast, William, a teenager, visited father throughout most of the reunification period even though he did not want to do so. And, both the juvenile court and DCFS were responsive to fathers complaints when he apparently was not receiving visitation. For example, on December 22, 2006, when father complained that he had not visited with William since William was detained, the juvenile court ordered DCFS to ensure that they had visitation. Later, when William missed two visits in December 2007, DCFS admonished the caretaker that William must participate in the court-ordered visitation and instructed her to transport William to the visits.

And, significantly, unlike the mother in In re Hunter S., supra, 142 Cal.App.4th 1497, fathers parental rights have not been terminated; his visitation rights remain intact. Thus, while he claims that he was denied inadequate visitation with William, he still has the opportunity for meaningful visitation with his son.

DISPOSITION

The juvenile courts order is affirmed.

We concur:

BOREN, P. J.

CHAVEZ, J.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.


Summaries of

In re William O.

Court of Appeal of California
Apr 22, 2009
No. B209426 (Cal. Ct. App. Apr. 22, 2009)
Case details for

In re William O.

Case Details

Full title:In re WILLIAM O., a Person Coming Under the Juvenile Court Law. LOS…

Court:Court of Appeal of California

Date published: Apr 22, 2009

Citations

No. B209426 (Cal. Ct. App. Apr. 22, 2009)