Opinion
B231275
12-21-2011
In re X.P., a Minor Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARISOL B., Defendant and Appellant.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK76104)
Appeal from an order of the Superior Court of Los Angeles County. Marguerite D. Downing, Judge. Affirmed.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Marisol B. (mother) appeals from the juvenile court order of February 28, 2011, ordering placement of her daughter X.P. in the home of P.P. (father). Mother contends there is insufficient evidence supporting the finding there was no risk of detriment to X.P. in father's custody. Mother does not contest any of the court's other orders or argue that X.P. should have been placed with her. We will limit our discussion of the pertinent facts accordingly and affirm the order.
Pursuant to a family court order, mother had legal custody of X.P. Father had not resided with mother and X.P. for a number of years, but he had visitation rights. It is undisputed father visited with X.P. regularly. Based on allegations of emotional abuse arising from the ongoing animosity between the parents, the Department of Children and Family Services detained X.P. on January 26, 2009, pursuant to Welfare and Institutions Code, section 300, subdivision (c). X.P., who was 10 years old at the time, was placed in the care of her paternal grandparents. The Department reported X.P. was under so much stress from her parents' contentious relationship that she was pulling out her hair and had suicidal thoughts. She expressed a desire to no longer live with her mother.
All further undesignated section references are to the Welfare and Institutions Code.
Following mediation and a stipulated disposition plan, the court sustained the amended petition against mother and father and ordered both parents to receive reunification services. The parties' mediation agreement and case plan provided that father was to complete a parenting class, Parents Beyond Conflict, and participate in a family psychological evaluation and individual counseling. Father was also ordered to produce six clean, consecutive random drugs tests. If any tests came back positive or were missed, then father was to participate in a substance abuse program. Father moved out of his parents' home to allow them to be the caregivers of X.P., even though he had been living there and assisting his mother in caring for his father and running a home-based family computer business. Mother was ordered to complete parenting classes and participate in counseling, a family psychological evaluation, and Parents Beyond Conflict. Both parents were allowed monitored visitation with X.P., with the Department having the discretion to liberalize visitation.
In the six-month review report, the Department reported that father was visiting consistently with X.P. in his parents' home, X.P. told the social worker she enjoyed visits with her father, and his angry outbursts were becoming less frequent. Father was reported as being in "partial compliance" with the case plan--participating in drug testing but wait-listed for counseling. The Department recommended that reunification services continue for both father and mother. It was noted that X.P. was doing well in the home of her paternal grandparents and that they were willing to adopt if the parents failed to reunify.
In preparation for the 12-month review hearing, the Department reported that father was continuing to have regular, positive visits with his daughter, helping her with homework and the like. However, father had still not completed his court-ordered counseling and parenting programs. The Department initially recommended that services be terminated. However, in a supplemental report, the Department stated that father had finally enrolled in individual therapy sessions at El Nido Family Center and that reunification services should be continued for father. The social worker acknowledged that father had done drug testing but was concerned about his failure to move forward with counseling.
The 12-month review hearing was eventually held, after some continuances due to notice defects, on June 11, 2010. The court found the Department had provided reasonable services, father was in "partial compliance" with the case plan, he was entitled to another six months of services, and there was a substantial probability X.P. would be returned to father at the 18-month review date.
In September 2010, the Department reported that father and mother were in compliance with their court-ordered programs, X.P. was doing well at her grandparents' home, and she was agreeable to being adopted by them. The court requested a supplemental report addressing a possible home-of-father order and/or placing X.P. with father on condition that they continue to reside in the grandparents' home. The court also allowed father to have unmonitored visitation with X.P. In November 2010, the court ordered that father was to be allowed overnight visits.
Thereafter, the social worker reported that X.P. said she wanted her father to regain custody of her and for him to move back into her grandparents' home. The social worker also reported he was attempting to schedule a team decision meeting with the whole family to determine what would be the best permanent placement for X.P. On the Department's recommendation, the court ordered that father was allowed to move back in to his parents' home and reside there with X.P.
In preparation for the 18-month review hearing, the social worker met with X.P. privately. X.P. told the social worker she liked her father living with her and reiterated her desire for him to regain custody. The social worker reported that father, X.P. and the grandparents appeared, from personal observation, to have developed a good structure and close family interaction. X.P. still expressed concerns about contacts with her mother and did not want unmonitored visitation with her. The Department recommended a home-of-father placement order and termination of services for mother.
The contested 18-month review hearing was held February 28, 2011, pursuant to section 366.22. Gerald Wilkins, the social worker, testified. He said he had observed X.P. and father together on several occasions, they had a strong bond, and father had made significant progress in the preceding months in counseling. Mr. Wilkins said it was his "strong belief" that father had made a change through counseling, had learned to address his anger management issues and was fully committed to his daughter. He stated his belief that father was really trying hard to ensure that his relationship with mother did not adversely affect X.P. and that they have a "harmonious relationship." Mr. Wilkins said those solid changes in father's behavior warranted the change in his recommendation from adoption by the paternal grandparents to the home-of-father placement.
X.P.'s therapist, Suzanne Hill, submitted a letter opining that X.P. was doing well in the home of her grandparents, expressly noting that her "father's attention and care with her homework has been most valuable and edifying for her." Ms. Hill also reported that X.P. was "clearly expressing" her desire for her father to be her guardian. In testimony, Mr. Wilkins corroborated that Ms. Hill had told him she was in favor of X.P. and father living in the same home.
Counsel for X.P. concurred in the recommendation to allow custody of X.P. to be returned to father, stating it was in X.P.'s best interests to do so, X.P. wanted her father to have custody of her, and she felt safe and happy with him. Following closing arguments, the court ordered X.P. placed in the home of father under the supervision of the Department and set a review hearing to take place in six months. Mother filed this appeal contesting only the home-of-father order.
We review the court's findings following a section 366.22 hearing under the substantial evidence test. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) "'Evidence sufficient to support the court's finding "must be 'reasonable in nature, credible, and of solid value; it must actually be "substantial" proof of the essentials which the law requires in a particular case.'"' [Citation.]" (Ibid.)The reviewing court is "without the power to reweigh conflicting evidence and alter a dependency court determination." (Ibid.)
Mother does not contest that father complied with the case plan by completing a parenting class, Parents Beyond Conflict, having the family psychological evaluation and participating in counseling. The sole basis for mother's appeal is her argument that there was no evidence X.P. could safely be placed in father's custody because there was no finding concerning father's use of marijuana or his failure to complete a substance abuse program. The argument is without merit. First, father's use of medical marijuana was never even discussed during the 18-month review hearing. Mother never raised the marijuana issue at all.
More importantly, there is nothing in the record indicating father ever had a substance abuse problem or was ever ordered to complete a substance abuse program. No substance abuse allegations were ever cited as the basis for the Department's detention of X.P. The detention was based solely on the contentious relationship between mother and father which caused emotional distress to X.P., and the case plan focused on all family members participating in counseling to address those emotional issues.
Father provided six clean drug tests as ordered by the court, in the latter half of 2009. The test results were negative for all tested substances, except for cannabinoids. However, father presented proof that his use of marijuana was under a lawful, medical prescription. The Department acknowledged father was in compliance with his programs, and the court accepted proof of the medical marijuana prescription. There is nothing in the record indicating the court ever found that father had a missed or "dirty test," which would have triggered the case-plan requirement to attend a substance abuse program. Moreover, there is nothing in the record indicating that father's use of medical marijuana had any adverse effects on X.P. or that it negatively impaired father's ability to exercise reasonable parental judgment. Mother's assertion there is a safety risk to X.P. is pure speculation.
Father maintained regular, positive visits with X.P., she has a strong bond with him, and she repeatedly stated her desire that he regain custody. "When making a custody determination in any dependency case, the court's focus and primary consideration must always be the best interests of the child. [Citations.]" (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268, italics added.) The record supports the court's determination that the home-of-father order for X.P. was in her best interests. Mother has failed to show evidence of a substantial risk of detriment to X.P. in the custody of her father.
DISPOSITION
The juvenile court's February 28, 2011 order placing X.P. in the home of father, under the Department's supervision, is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J.
FLIER, J.