Opinion
F073914
03-01-2017
In re GABRIELLA P., et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JOEL P., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CEJ300039-1, 2)
OPINION
APPEAL from orders of the Superior Court of Fresno County. Gary L. Green, Commissioner. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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Joel P. (father) appeals a juvenile court order removing his daughter Gabriella P. and son J.P. (collectively the children) from his custody following true findings made on a supplemental dependency petition under Welfare and Institutions Code section 387. Father challenges the sufficiency of the evidence to support the juvenile court's findings that removal from his custody was necessary to prevent substantial danger to the children. He also contends the juvenile court-ordered case plan requirements were overly burdensome and contrary to the unique needs of his family. We affirm the orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2015, the Fresno County Department of Social Services (Department) initiated dependency proceedings over then five-year-old Gabriella and two-year-old J., who were living with their mother, Ashley S. (mother) and her boyfriend, Cory K. Police had arrested mother and Cory on February 8 after discovering J. had bruises on both sides of his face, swelling on his left eye, swollen lips, and bite marks on his face and chest. Several neighbors told police the children had been crying and screaming the night before, and one neighbor said this was not the first time she had noticed bruises on J. or heard the children crying.
Unless otherwise stated, references to dates are to dates in 2015. --------
The children were taken to Valley Children's Hospital, where they were medically cleared for placement. A nurse noticed J. had a bite mark on his thigh, as well as on his stomach and face. Gabriella did not have any visible injuries. J.'s urine sample tested positive for amphetamines. Both children had head lice. Cory admitted to police that he hit J. repeatedly because J. urinated in his pants. Mother admitted that Cory had hit J. over a period of about four hours, yet she did not intervene to protect him. Cory and mother were charged with felony child abuse. The children were taken into protective custody.
The following day a social worker contacted father at his home, where he lived with his girlfriend, Christy A., his aunt and uncle, three cousins and his grandmother. Father said he had not seen the children since August or September 2014 because mother had stopped following visitation orders. He tried to have law enforcement agencies enforce the visitation order, but they did not do so. Father did not have any contact information for the children. He said he had a family court hearing on February 25 regarding the children's custody. Father denied knowing that the children were in an abusive environment at mother's home, although he believed mother did not watch the children carefully.
Father denied recent illegal drug use in the home. He had a medical marijuana card. Father had been in a five-year relationship with mother and he claimed there was never any domestic violence. The social worker saw that father's home was furnished, tidy and appropriate. She told father that law enforcement was not allowing the children to be placed with any family members at that time due to the impending criminal investigation. Father later told the social worker he wanted the children placed in his home once the investigation was complete.
On February 11, the juvenile court ordered the children detained from both parents and ordered the Department to assess father for placement. After a further assessment of father and his home, the Department placed the children with him on February 13. Although father tested positive for marijuana, he had a medical marijuana card and there were no concerns that his marijuana use affected his ability to appropriately care for the children.
A contested jurisdiction hearing was held on April 6. The juvenile court found true the petition's allegations, as amended by the court, that the children fell within the provisions of section 300, subdivision (b), based on mother's failure to protect J. from physical abuse by Cory, her admitted use of marijuana, and her allowing Cory to use drugs in the children's presence.
In a report prepared for the disposition hearing, the Department recommended that father receive family maintenance services and mother family reunification services. The social worker noted that father was living in a home with his family, who provide extra care and supervision of the children, and the children appeared comfortable in father's presence. The children were having a hard time communicating with outsiders, but told the social worker they were happy living with father. The children had completed mental health evaluations which revealed they had symptoms of adjustment disorder with anxiety and separation anxiety. Individual and family treatment were recommended for both of them. The Department believed father would be able to protect and care for the children because he had a family support network who also cared for them. The Department, however, had two concerns - first, that father was allowing Christy, who had untreated schizophrenia, to remain in the home with the children, and second, that he would continue to allow Christy to speak about the case and argue in front of the children, thereby causing them further emotional trauma.
At the April 20 disposition hearing, the juvenile court adjudged the children dependents, ordered them removed from mother's care, and placed them with father as the noncustodial parent pursuant to section 361.2. The juvenile court set a family maintenance review (FMR) hearing for father on June 22 and a six-month review hearing for mother on September 28. The juvenile court ordered reunification services for mother and family maintenance services for father. Father's services consisted of a parenting class, and a mental health evaluation and any recommended treatment. The juvenile court ordered the children to complete a mental health assessment and any recommended treatment.
In a report prepared for the FMR hearing, the social worker stated that father had moved to a one-bedroom apartment, where he was living with Christy and the children. Father was unemployed, but looking for employment. Father had been attending his parenting class, which he was scheduled to complete in August. He completed a mental health assessment, which revealed symptoms of adjustment disorder with anxiety; he was showing anxiety due to financial and housing concerns. He was attending weekly therapy sessions. While father had shown significant progress and benefit from court-ordered services, the Department recommended he continue with family maintenance services to give it time to see if father could be stable, provide adequate care for the children, and improve on any clinical or situational variables causing him emotional distress. The juvenile court continued family maintenance services and set a FMR hearing for September 28.
The combined six-month and FMR hearing was continued several times and ultimately held on November 2. In a report prepared for the hearing, the Department recommended that services continue for both parents. Father was still unemployed and living in the apartment with Christy and the children. The Department was concerned that father had not treated the children's head lice and had not set up therapy appointments for the children and himself. The Department met with father on August 18 to discuss the importance of clearing the head lice, enrolling the children in school and obtaining mental health services. Father agreed to buy products to treat the head lice, make sure Gabriella was enrolled in school, and call the mental health clinician by August 21 to enroll all of them in mental health services. At a Department meeting on September 2, father reported the children were clear of head lice, Gabriella was enrolled in school, and J. was on a waiting list for a head start program. Father, however, had not scheduled the mental health therapy services. On September 21, the mental health therapist advised the social worker she would be discharging the children from therapy due to non-attendance.
Father had not completed his case plan. He was dropped from his parenting class on August 6, after attending only eight of the 14 classes. Father claimed he did not realize he was dropped from the class. The social worker re-referred father and he was on a waiting list to re-enroll in the class. Father had not attended therapy since the end of June, despite numerous attempts by the social worker to encourage him to schedule and attend therapy sessions. The Department received a referral on August 20 regarding concerns of domestic violence between father and Christy. Father had scratches on his nose and near his right eye. J. stated that the two were saying bad words and hitting each other. The referral was "evaluated out" due to the open family maintenance case.
The Department opined there was a substantial risk to the children's physical, emotional and educational health should father's family maintenance case be terminated. The Department was concerned that father could continue to allow Christy to speak about the case and argue in front of the children. Mother had been receiving therapeutic visitation; during visits, Christy and mother argued and the children were often torn between the two families. Although father had been asked to speak to Christy or leave her at home, Christy continued to come to visits, and argue with mother. The Department also was concerned that father had not completed his parenting class or consistently attended therapy, he would not tend to the children's medical issues, and he would not ensure the children received court-ordered therapy. Moreover, the children had missed some visits with mother because father did not bring them due to transportation issues.
Following the contested hearing, at which mother argued she was not provided reasonable services in regards to visitation, the juvenile court found that mother was provided reasonable services, and ordered continued reunification services for mother and family maintenance services for father. The juvenile court set a FMR review hearing for February 22, 2016, and a six-month review hearing for March 21, 2016.
On December 28, the Department received a crisis referral stating there had been a domestic violence incident between father and Christy at their home and there was a concern the children were present. The social worker contacted the police for assistance. An officer who arrived at the apartment before the social worker stated the apartment was very messy and there was a strong odor inside, which made it difficult to breathe. The officer decided to place a protective hold on the children because the apartment was so cluttered and dirty. The officer confirmed that other officers had been called out to the apartment the previous evening due to a domestic violence incident between father and Christy, but they did not have many details regarding that case. When the social worker told the office there was no need to place the children under protective custody because they already were dependents, the officer stated that no child should be living in those filthy conditions.
The social worker spoke with father. Father explained that he had been cleaning up, but it was hard for him because Christy did not help him. The day before, Christy assaulted him and broke his television. He told Christy to leave and never return, and she was no longer living there. There were roaches on the stove; father said he spoke with the landlord, who did nothing about it. The social worker asked father about any drug use, and father responded that he had a medical condition that required him to use cannabis, for which he had a doctor's note.
The social worker walked around the apartment, which was a town house. The living room on the first floor had a mattress, and dirty clothing and trash all over. There was so much clutter it was hard to walk around. The smell in the apartment was very strong; there were two small dogs and a strong odor of animal urine. The kitchen was dirty; there were dirty dishes in the sink and the inside of the refrigerator was also dirty. The upstairs bedroom where the children slept was cluttered with dirty clothing and toys spread all over. The bathroom also was dirty and cluttered. The foul smell permeated the apartment. Father told the social worker he did not want his children taken. The social worked explained that father needed to clean the apartment and told him to contact the case manager in the morning.
The social worker spoke with five-year-old Gabriella, who stated that she did not like Christy because she was mean to her and spanked them when they did something wrong. Gabriella said that father would send them to their room when they got in trouble. Gabriella confirmed the police came to their apartment the day before, but she did not know what happened between father and Christy. Gabriella did say that father was not going to marry Christy anymore as he did not love her. Gabriella said that father cleaned the apartment all the time and Christy did not help him. Three-year-old J. also said that Christy spanked him and his sister. The social worker did not observe any marks or bruises on either child and they were clean and appropriately dressed for the weather. The children were removed and placed into foster care.
On January 4, 2016, the Department filed a supplemental petition pursuant to section 387, seeking to remove the children from father's custody and recommending a foster care placement. The petition alleged the children were at substantial risk of suffering serious physical harm or illness if left in father's care due to: (1) The condition of father's home, which was unsafe for the children to reside in, the dirtiness of the entire home, and the roaches; and (2) the domestic violence incident that occurred in front of the children, which included an argument between father and Christy, Christy assaulting father and breaking the television, and Christy threatening to hurt herself.
At the January 5, 2016 detention hearing, the juvenile court ordered the children removed from father and detained. In a report prepared for the jurisdiction/disposition hearing, which was set for January 25, 2016, the Department recommended that the juvenile court find the petition's allegations true, order the children to remain in an out-of-home placement, terminate father's family maintenance services and offer father family reunification services, including a parenting class, a mental health evaluation and any recommended treatment, a substance abuse evaluation and any recommended treatment, a domestic violence index (DVI) and any recommended treatment, and participation in random drug testing.
The social worker explained that despite being offered family maintenance services since February 2015, father was exposing the children to domestic violence in his home and to an unsanitary home environment. Moreover, father neglected the children's physical, emotional and medical needs, as numerous meetings were required to get father to address the children's issues such as their head lice, not attending therapy himself or taking the children to therapy, and keeping his home clean and sanitary. The social worker also had informed father of the trauma domestic violence can have on the children's development. The social worker opined father required time to show he could ameliorate the reasons the children were brought into the Department's care.
Father had gotten a part-time job selling vacuum cleaners. He and the children had been attending therapy since October 29. The therapist reported that father had been relatively consistent in his attendance, but she felt he was making little progress. The therapist believed Gabriella was suffering from trauma, while J. was hyperactive and had a short attention span. Father completed the parenting class on January 19, 2016.
The juvenile court continued the combined jurisdiction/disposition hearing to April 4, 2016, to allow time for the Department to comply with the Indian Child Welfare Act, and set the 12-month review hearing to be held on the same date. When father and mother requested contested hearings, the hearings were continued to April 27, 2016.
In reports prepared for the continued hearings, the social worker stated that father had moved to Wyoming on March 16, 2016. While he did not inform the Department of his move, he left a voicemail asking the Department to transfer his services and provided a new telephone number in Wyoming. On March 22, 2016, the social worker called father at that number and left a message for him to return her call. On April 8, 2016, father told the social worker he was staying in Wyoming, but did not provide an address. Father said he would be moving back to California, but was staying in Wyoming because he had a job as a ranch hand. Father had not visited the children.
Although father was scheduled for a DVI on January 29, February 2 and February 16, 2016, father did not attend any of the assessments. On February 1, 2016, father completed an addiction severity index with a substance abuse specialist, who recommended father receive intensive outpatient substance abuse treatment. Father did not attend an intake at WestCare, which was scheduled for March 18, 2016. Father enrolled in random drug testing on January 29, 2016, but his referral was closed on March 16, 2016 for missing ten consecutive tests. While father did not take the children to therapy consistently when they lived with him, they had been attending regularly since being placed in foster care.
The social worker opined there was a substantial danger to the children's physical health, or they were at risk of suffering severe emotional damage, if they were returned to father, based on father allowing domestic violence altercations and arguments to occur in front of the children, allowing the children to suffer from medical issues such as head lice, and exposing the children to an unsafe home. Moreover, father had not availed himself of the services offered, and therefore had not shown he had ameliorated the reasons the children were removed from his care. The Department continue to recommend termination of father's family maintenance services and that the juvenile court order family reunification services.
Father did not appear for the April 27, 2016 hearing. Although the juvenile court had previously given father permission to appear via court call so he could listen to the proceedings, he was not on court call when the hearing began. Accordingly, the hearing proceeded without him. Father's attorney had advised father of the trial time and date, which the social worker also confirmed with him. Since his attorney was unsure what evidence father wanted her to present, the attorney objected to the petition's allegations and disposition with a brief argument. With respect to the allegations, father's attorney argued that there was no evidence a domestic violence incident occurred in front of the children and asked the juvenile court to strike that allegation. In response, County counsel stated the Department was willing to change the petition's language to indicate the December 27 domestic violence incident occurred in the home while the children were in father's care, instead of that it occurred in front of the children. The juvenile court amended the petition accordingly. Father's attorney also argued father's home was not in an unsanitary state and he had offered to clean it, and the social worker had never before mentioned that the house was in disarray. With respect to disposition, father's attorney argued that father had completed parenting classes and was participating in services. Father wanted to have the children returned to his care on a plan of family maintenance, as there was no need to remove the children from him.
County counsel argued there was sufficient evidence in the reports to show the petition's allegations were true and the previous disposition was ineffective to protect the children. Father had been on family maintenance for 11 months, the social worker had numerous meetings and interventions to get father to comply with his services, the condition of the home had always been an issue during home visits, and the social worker addressed the home's condition with father, as well as his compliance with mental health services. The situation became so grave that on December 28, the officer declared that no child should be living in such filthy conditions. As to the domestic violence incident, Gabriella's statements to the social worker indicated she had picked up on the hostility in the home between father and Christy, and Christy's inappropriate use of discipline and the children's indication they did not like her suggested father was using poor judgment in his relationship choices by allowing Christy to live in the home and participate in parenting tasks. The condition of the home and the children's exposure to hostility between father and Christy showed that father did not exercise good judgment or protect the children. The children's attorney submitted on the reports and asked the juvenile court to find the petition's allegations true.
The juvenile court explained that while father would have been the ideal person to provide evidence to contradict the petition's allegations, he chose not to appear, even though he had been notified of the hearing through multiple sources. The juvenile court did not see any reason, especially based on father's failure to appear, to not find jurisdiction on the count alleged in the petition. The juvenile court found the petition's amended allegations true; that there was clear and convincing evidence that continuing the children in father's home was contrary to their welfare; there would be a substantial danger to the children's physical health, safety, protection, or physical or emotional well- being if they were returned home; and there were no reasonable means to protect the children without removing them from father's physical custody.
Based on these findings, the juvenile court removed the children from father's custody, terminated father's family maintenance services, and granted father and mother family reunification services. The juvenile court ordered them to participate in and complete the following services: parenting class; mental health evaluation and recommended treatment; substance abuse evaluation and recommended treatment; domestic violence index and recommended treatment; and random drug testing. Father was given supervised visitation at least once a week upon his return to California and his request for visits, with discretion given to the Department to increase visits to unsupervised. The juvenile court set a six-month review hearing for October 2016. At the request of father's attorney for visits with the children by telephone or Skype, the juvenile court ordered that father was entitled to phone, mail and gift exchanges with the children, and could work with the social worker regarding electronic face-to-face visitation.
DISCUSSION
Father contends the juvenile court erred in denying him custody of the children pursuant to the section 387 petition. According to father, the record contains insufficient evidence to support the juvenile court's finding that returning the children to parental custody would create a substantial danger to their well-being. Father also challenges the services the juvenile court ordered. We address each in turn.
The Removal Order
Before the juvenile court can change or modify a previous order by removing a minor from a parent's physical custody and directing foster care placement, there must be a hearing on a supplemental petition. (§ 387, subd. (a).) A petition under section 387 need not allege new jurisdictional facts, or urge different or additional grounds for dependency, because a basis for juvenile court jurisdiction already exists. (In re John V. (1992) 5 Cal.App.4th 1201, 1211; In re Joel H. (1993) 19 Cal.App.4th 1185, 1200 (Joel H.).) The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child. (§ 387, subd. (b); Joel H., supra, 19 Cal.App.4th at p. 1200.) In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been ineffective in protecting the child. (Cal. Rules of Court, rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a dispositional hearing to determine whether removal of custody is appropriate. (Cal. Rules of Court, rule 5.565(e)(2).)
When a section 387 petition seeks to remove a minor from parental custody, the court must apply the procedures and protections of section 361. (In re Paul E. (1995) 39 Cal.App.4th 996, 1001-1003.) Thus, before a minor can be removed from the parent's custody, the court must find, by clear and convincing evidence, "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's ... physical custody." (§ 361, subd. (c)(1); In re Javier G. (2006) 137 Cal.App.4th 453, 462.)
A removal order is proper if it is based on proof of: (1) parental inability to provide proper care for the minor; and (2) potential detriment to the minor if he or she remains with the parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) The parent need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) We review the juvenile court's dispositional findings for substantial evidence. (In re A.O. (2004) 120 Cal.App.4th 1054, 1061; In re Henry V. (2004) 119 Cal.App.4th 522, 529.)
Substantial evidence supports the juvenile court's dispositional findings, as father failed to demonstrate he was capable of adequately parenting the children. When the children were placed with father, they had suffered physical and emotional trauma at the hands of mother and her boyfriend. Father had not seen the children for nearly six months. The children's mental health exams revealed that they were suffering from adjustment disorder with anxiety and separation anxiety. Although the Department had concerns at that time about placing the children with father, as he was allowing his mentally ill girlfriend to live with them and she argued with him in front of the children, it recommended placement with him because he had family support. After father, his girlfriend, and the children moved into an apartment, father stopped taking the children to therapy, did not treat the children's head lice, and did not enroll them in school. Father also stopped attending his parenting class. It was not until the social workers intervened that father complied.
Not two months had passed after the six-month FMR hearing when the Department received a referral regarding a domestic violence incident between father and Christy. This was not the first such referral, as the Department received a referral in August that there was domestic violence between father and Christy, which J. apparently had witnessed. It was apparent from Gabriella's statements to the social worker that she was aware of the hostility in the home. It was also apparent that father was using poor judgment by allowing Christy to live in the home, and failed to protect the children from her use of inappropriate discipline and from living in a filthy home.
Based on this evidence, the juvenile court reasonably could conclude the children's physical and emotional well-being would be in substantial danger if they were returned to father's care. Father asserts this was an isolated incident of domestic violence and there was not an ongoing risk of further incidents because Christy was no longer living with him. This fact, however, does not eliminate the risk of harm because, given father's past history of allowing Christy into the home, the juvenile court reasonably could conclude it would not be safe to return the children until father benefited from intensive services to enable him to learn to protect the children from exposure to domestic violence.
Father also asserts that the filthy apartment did not justify removal. It is not the filthy apartment alone, however, that supports the juvenile court's removal order. Instead, it is the combination of father's minimal compliance with services, and his indifference to the children's emotional and physical needs despite the services he had completed, that placed the children in substantial danger if they were returned to him.
The Case Plan
Father also contends that certain aspects of his case plan—which requires him to complete a parenting class, comply with mental health, substance abuse and domestic violence evaluations and any recommended treatment, and participate in random drug testing—are overly burdensome and in error. Specifically he argues the juvenile court should not have ordered the substance abuse assessment or random drug testing because there was no evidence he had a problem with drugs or alcohol, and it was unnecessary to order parenting or the mental health evaluation, as he already completed those components. The Department contends father forfeited this issue by failing to object to the reunification plan below.
We agree with the Department. Father was aware of the proposed services, as they were offered to him at the January 5, 2016 detention hearing. Before moving to Wyoming in March 2016, father continued to attend therapy sessions, had completed the substance abuse evaluation, and enrolled in random drug testing, although he tested only once. Neither father nor his attorney objected to the substance abuse related services, or to the inclusion of parenting and mental health, in the reunification service plan the juvenile court ordered at the disposition hearing. As such, father forfeited his claims that his case plan was overly burdensome or inappropriate. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1476; see generally In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1110; In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222; In re Elijah V. (2005) 127 Cal.App.4th 576, 582; see also In re S.B. (2004) 32 Cal.4th 1287, 1293 ["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"].) We will not address the issue, as father could have easily resolved the issue in the lower court, or had the juvenile court explain its reasons for imposing these requirements, which would provide for more meaningful review by this court. As it stands, with father's failure to object, he cannot now complain.
DISPOSITION
The juvenile court's April 27, 2016 orders are affirmed.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
FRANSON, J.