From Casetext: Smarter Legal Research

Orange Cnty. Soc. Servs. Agency v. Ignacio H. (In re Amy H.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Sep 4, 2012
G046441 (Cal. Ct. App. Sep. 4, 2012)

Opinion

G046441

09-04-2012

In re AMY H., A Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. IGNACIO H., Defendant and Appellant.

Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. DP021410)


OPINION

Appeal from an order of the Superior Court of Orange County, Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minors.

Ignacio H. (Father) appeals from a dispositional order of the juvenile court. He contends the court erred in denying his request for custody of his daughter Amy. We disagree and affirm the order. We find substantial evidence supports the trial court's decision.

FACTS

In June 2011, four-year-old Amy and her half-siblings were taken into protective custody pursuant to a warrant that was requested by the Orange County Social Services Agency (SSA). The warrant alleged the children's mother (Mother) is mildly mentally retarded and had failed to provide the children with minimal care and support. SSA also alleged the children's fathers knew or should have known Mother was incapable of caring for the children yet failed to protect them. Upon being detained, the children were placed with their maternal aunt, who presently cares for them.

Because Amy's placement is the only issue in this appeal, facts relating to her half-siblings will be omitted.

The next day, the social worker contacted Father by telephone at his home in Acapulco, Mexico. During the call, Father said he had lived in the United States for 18 years but was deported around 2008 for driving without a license. He also said that, prior to that time, he had been living with Mother and supporting Amy, who was born in 2007. Father said that when Amy was a toddler, she and Mother lived with him in Acapulco for about six months. However, Mother didn't like it there, so she and Amy returned to the United States. Father claimed the last time he saw Amy was about a year ago, in Tijuana. He said he knew Mother had not been caring for Amy properly, and he wanted the child placed in his care. He also said he would participate in any reunification services offered to him. He admitted a decade-old incident of domestic violence involving his ex-wife but denied any history of drug or alcohol abuse.

The juvenile court upheld the children's detention and authorized reunification services for Mother and Father. It also authorized phone contact between Father and Amy and asked SSA to look into the feasibility of border visits. In addition, the parties discussed the prospect of Amy getting a passport and the need for SSA to coordinate with Desarrollo Integral De La Familia (DIF), a Mexican social services agency, to ensure Father was afforded reunification services.

A month into the case, SSA filed an amended petition alleging Father had an unresolved history of violent behavior and substance abuse that placed Amy at risk of harm. The allegation stemmed from a criminal records check that revealed Father had been arrested and cited for inflicting corporal injury on a cohabitant in 1995 and that he was convicted of that offense in 1999. That year Father was also charged with child cruelty but the charge was ultimately dismissed. In 2000, Father was again convicted of inflicting corporal injury on a cohabitant, as well as violating a protective order and making a terrorist threat. And in 2005, he was convicted of driving without a license and giving false identification to a police officer. Then, in 2006 he was convicted of possessing drug paraphernalia and failing to appear for a court appearance. His final brush with the law occurred two years later, in 2008, when he was arrested and cited for possessing marijuana.

After this information was discovered, the social worker asked Father about his criminal record. At first, he said his record was limited to driving violations. But after the social worker informed him of the results of the records check, he acknowledged the domestic abuse charges. He claimed the victim injured herself, and he only admitted the charges because he didn't want to spend more time in jail. He also said he had completed a court-ordered domestic violence program in Irvine, but he did not have a certificate of completion. He denied possessing drug paraphernalia or knowing anything about the child cruelty charge that was leveled against him in 1999, but he did admit using marijuana regularly while he was in the United States. He said he was clean now and had not used any drugs since he was deported to Mexico. At one point, he told the social worker his deportation was due to a driving under the influence charge, but he later told her that was not true and that he had mentioned that charge "by mistake."

When the social worker interviewed Amy, she said she wanted to live with Father. They had been having regular phone contact, and she seemed to enjoy their conversations. Father told the social worker he was preparing a room for Amy in his house in anticipation of her arrival. He said that although he works long hours as a security guard, including the nightshift at times, he has relatives who would be willing to help him care for Amy if she was placed in his care.

Knowing of Father's desire to reunify with Amy, SSA contacted the Mexican Consulate to ensure reunification services were being offered to him through DIF. Among other things, SSA requested that domestic violence, substance abuse and parenting classes be made available to Father. SSA also requested a home study to assess Father's ability to care for Amy.

The jurisdiction/disposition hearing was originally scheduled to take place in July 2011, but it was continued several times. Over the course of this period, Father's attorney repeatedly brought up the issue of border visits and passport funding. However, as it turned out, Amy could not obtain a passport until she was declared a dependent of the court. In addition, Father told the social worker that because of his work schedule, and because he lives so far away from the border, he could only visit Amy every other month. Meanwhile, Mother was jailed for assaulting the father of Amy's half-siblings. Despite her incarceration, she requested custody of Amy, and Amy said she wanted to live with her.

On August 10, 2011, SSA filed a second amended petition to reflect that although Father had a history of domestic violence and substance abuse, he was working toward resolving those issues.

During September 2011, the social worker spoke with Father by telephone on several occasions. He said he had been in contact with DIF regarding his services and was participating in a domestic violence program, parenting classes and substance abuse treatment, all at the same location. However, he was unable to provide the name of anyone at the facility whom the social worker could contact to check on his progress. Father continued to have regular phone contact with Amy, and their first border visit was scheduled for November 1.

On October 10, DIF prepared a home study on Father's residence in Acapulco. The study states that Father lives in a two bedroom dwelling, works 12 hours a day and earns $5,200 per month. It also states his girlfriend has a law degree and works in the public ministry. When interviewed for the study, Father reported that although Amy was just nine months old when he was deported, he continued to provide support for her after that time, and he hopes she will eventually be placed in his care.

However, in late October, Father informed the social worker he could not make it to the border visit that was planned for November 1, because he couldn't get time off from his job. He said he was still attending all of his treatment programs and was also undergoing drug testing. He also provided the phone number of the treatment facility where the programs were being administered.

In November 2011, Amy told the social worker she wanted to be with Father. However, she also said she wanted to live with the social worker. Mother pleaded guilty to her criminal charges and was sentenced to a short jail term. At the jurisdictional hearing on November 29, she pleaded no contest to the allegations in the second amended petition, and Father submitted on the reports. The court then assumed jurisdiction over Amy and her step-siblings and continued the disposition hearing to January 10, 2012. With that hearing in mind, the court also ordered SSA to secure a passport for Amy and to obtain further information regarding Father's progress on his case plan.

On December 8, 2011, the social worker telephoned Father, and he said he had completed his parenting classes and his drug treatment program. However, upon further questioning, he admitted he was less than half-way done with his drug treatment program. He also said he had not yet started his domestic violence program. Given his work schedule, he said he probably could not visit Amy at the border until the end of January, 2012. Therefore, a visit was scheduled for January 30. Like Father, Mother said she wanted custody of Amy. However, she also said she was comfortable with Amy living with Father. Amy's passport application was submitted to authorities on December 15, 2011.

In early January 2012, Father reported he had completed his parenting classes and was working on his drug treatment and domestic violence programs. The social worker tried on numerous occasions to contact the director of those programs in Mexico, but she was unsuccessful in that regard.

On January 10, 2012, nearly seven months after Amy was detained, the disposition hearing finally began. At that time, Mother's attorney informed the court Mother was supportive of Father's request to have Amy returned to him. However, the social worker testified she felt it would be premature to return Amy to Father because, although he had apparently completed his parenting classes, he was still working on his drug treatment and domestic violence programs. The social worker said she had made several attempts to contact Father's service providers, but her efforts had not been fruitful. The social worker feared that because Father was still working on his drug and domestic violence issues, he could pose a threat to Amy if she was placed in his care.

On cross-examination, the social worker acknowledged Father's documented incidents of domestic violence occurred before Amy was born, he offered to provide support for Amy after he was deported, he speaks with Amy frequently on the phone, and she has an expressed a preference for living with him. However, the social worker still believed it was too early in the case to return Amy to Father's care.

Amy's attorney agreed with this assessment, and so did the court. Observing that Amy was only four years old, the court noted she had made conflicting statements about who she wanted to live with. And despite Father's frequent phone contact with her, they had not actually seen each other for a substantial period of time. The court also found it significant that Father has made inconsistent statements to the social worker about his past criminal behavior and his progress on his case plan. All things considered, the court believed it would be detrimental to place Amy in Father's custody at this time and rejected his request to have her placed in his care.

DISCUSSION

Father argues there is insufficient evidence to support the court's decision to keep Amy in her current placement with her maternal aunt. We disagree.

In rendering its decision, the court cited Welfare and Institutions Code section 361, subdivision (c)(1). Under that provision, a dependent child may not be removed from the custody of a parent with whom he or she resided at the time the petition was initiated unless there is clear and convincing evidence of a substantial danger to the child's health or well-being and there are no other reasonable means to protect the child.

All further statutory references are to this code.
--------

Father correctly notes that since Amy was not in his custody when the petition was initiated, section 361, subdivision (c)(1) does not pertain to him. However, as we now explain, the trial court's ruling was fully justified under a related provision applicable to noncustodial parents such as Father. Therefore, it is immaterial that the court cited the wrong statute.(In re Natasha A. (1996) 42 Cal.App.4th 28, 38 [appellate court reviews the trial court's ruling, not its reasoning, and may affirm if the ruling is correct on any ground].)

The applicable provision as to Father is section 361.2, subdivision (a). That provision, like section 361, subdivision (c)(1), focuses on detriment to the child. More specifically, it provides that if a noncustodial 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." (§ 361.2, subd. (a).)

In considering the potential for detriment, "the court may consider any jurisdictional findings that may relate to the noncustodial parent under section 300, as well as any other evidence showing there would be a protective risk to the child if placed with that parent." (In re V.F. (2007) 157 Cal.App.4th 962, 970.) On appeal, we review the evidence in the light most favorable to the court's decision to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence the child would suffer detriment to his well-being. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)

In arguing lack of evidence to support the trial court's decision, Father asserts that he had "absolutely nothing to do with the allegations which brought [Amy] into the dependency system." However, the dependency petition alleged both neglect and failure to protect. Although it was Mother who was neglecting to care for Amy properly, Father failed to protect her from that neglect. And this was true even though in his earliest conversations with the social worker, he admitted knowing Mother was not caring for Amy adequately.

Granted, Father's deportation effectively prevented him from being present in Amy's home. However, his deportation followed on the heels of his own misdoings. Father has a long history of domestic violence, and by his own admission, he regularly used marijuana after Amy was born. Not only has his drug use led to various arrests and convictions, he also told the social worker at one point that a drunk driving incident played into his deportation. So to say he had absolutely nothing to do with the conditions that gave rise to Amy's detention is a bit disingenuous.

Father contends it would be purely speculative to think his past problems with domestic violence and substance abuse might pose problems for Amy if she were placed in his care. However, as the trial court observed, the record is replete with instances where Father has been evasive and misleading about his past criminal behavior. It was entirely reasonable for the trial court to be concerned about Amy's safety in light of Father's repeated efforts to downplay and minimize both the number and severity of arrests and convictions he has suffered over the years.

To Father's credit, he has expressed a willingness to participate in reunification services. But like the statements he has made about his criminal record, Father's statements about his treatment record have been have been riddled with inconsistencies. At the beginning of the case, he told the social worker he had completed a court-ordered domestic violence program prior to his deportation, but he was unable to provide proof he had actually done so. Then, a few months into the case, he claimed he had finished a drug treatment program in Mexico before admitting he was really only half-way done with the program. He also said he was participating in a domestic violence program at that time, but he later admitted he had not even started that program.

Father's statements raise questions about his credibility and commitment to his treatment program. To make matters worse, he was slow in terms of providing the social worker with contact information for his services providers. He did eventually provide a contact number, but the social worker was unable to reach any of Father's providers at that number, despite making numerous attempts to do so.

Father suggests the social worker was lax about her responsibilities and should have done more to facilitate reunification, such as exploring the feasibility of computer video conferencing between him and Amy. But neither Father nor his attorney ever asked the social worker to look into that. And when the social worker did set up a visit for Father and Amy at the border, it was Father who canceled and asked to have the visit rescheduled. Throughout the case, the social worker has consistently communicated with Father to assess his needs. She has also worked with the Mexican Consulate and DIF to ensure Father is receiving appropriate services, and she has jumped through all the hoops necessary for Amy to obtain a passport. We are not inclined to lay Father's failings at her feet.

Viewing the record as a whole, and in the light most favorable to the trial court, we conclude there is substantial evidence to support the court's finding that vesting custody of Amy with Father would be detrimental to her well-being. We find no basis for disturbing the court's finding in that regard.

DISPOSITION

The dispositional order of the juvenile court is affirmed.

BEDSWORTH, J. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.


Summaries of

Orange Cnty. Soc. Servs. Agency v. Ignacio H. (In re Amy H.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Sep 4, 2012
G046441 (Cal. Ct. App. Sep. 4, 2012)
Case details for

Orange Cnty. Soc. Servs. Agency v. Ignacio H. (In re Amy H.)

Case Details

Full title:In re AMY H., A Person Coming Under the Juvenile Court Law. ORANGE COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Sep 4, 2012

Citations

G046441 (Cal. Ct. App. Sep. 4, 2012)