Opinion
C086009
07-30-2018
In re J.H., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. A.H., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD238263)
A.H. (father) appeals from the juvenile court's dispositional order denying reunification services as to minor J.H. (Welf. & Inst. Code, §§ 355, 358, 361.5; undesignated statutory references are to the Welfare and Institutions Code.) We affirm.
FACTS AND PROCEEDINGS
On July 10, 2017, the Sacramento County Department of Child, Family and Adult Services (department) filed a section 300 petition as to the eight-year-old minor, alleging that mother (V.B.) had failed to protect the minor and her older half sibling from physical abuse by mother's boyfriend. The half sibling's presumed father subsequently obtained custody of him; he is not a party to this appeal.
The detention report alleged that mother and the boyfriend were homeless drug users. Although the half sibling bore the brunt of the abuse, the boyfriend had also physically abused the minor.
Father was recently released from prison after serving a five-year sentence for participating in a murder. His parole agent supplied a Madera County address and telephone number for him.
At the detention hearing, father appeared and was tentatively found to be the minor's presumed father.
The department recommended placing the minor with father. The social worker had taken the minor to visit father in Madera, where he lived with his sons (by different mothers), eight-year-old Nat. H. and one-year-old Nap. H. The home appeared well cared for and able to house the minor, who was excited to see father and instantly started to play with his sons on arrival. Father said he was divorcing his wife, L.B., after six months of marriage because she was "explosive" and violent. He said he did not use corporal punishment, and in any event would not hit the minor because she had been through so much and he did not want to traumatize her further. The paternal grandmother, who lived with him, was a part of his safety network. The Children's Protective Services (CPS) data base showed no history for father's sons.
In September 2010, father was convicted of second degree robbery; he began parole in October 2013 and was scheduled for discharge in April 2019. According to father, he went to a home with two other men, not knowing what was going to happen, then remained outside while the others went inside and killed the victim. When they came out and said they needed help with the body, he refused to go with them.
On July 18, 2017, the juvenile court temporarily released the minor to father pending the jurisdiction/disposition hearing, with a standing order to keep the court, counsel, and the department informed of any changes of address or telephone number, and to furnish the department with medical, dental, and mental health information about the minor.
On August 3, 2017, the department filed a recommendation to remove the minor from father's custody.
The social worker stated that during an interview at his home on July 24, 2017, father had been "guarded throughout the discussion of his childhood and provided limited information, despite multiple follow-up questions." He denied any mental health history, but he had been placed on an involuntary hold in 1990 after "self-harm attempts" and trying to stab his grandmother.
CPS records showed that although father denied any previous or current restraining orders, in 2008 the father of the minor's half sibling obtained a restraining order against father after father tried to run him off the road. In May 2014, a referral to CPS alleged that father punched Nat. H. and hit him with a belt, and father admitted to "being physical with" him, but because he had no visible injuries the referral was deemed unfounded.
Father reported that he had met L.B. in February 2016 and married her in December 2016, but after she learned in May 2017 that she was pregnant she started " 'flipping out and yelling about everything,' " and he had asked her to leave the home because he did not want Nat. H. to witness her outbursts. He said he made video recordings of her acting out in order to protect himself from false charges. He hoped to reconcile with her and requested anger management classes for both of them.
On August 1, 2017, the social worker left a message at the number father had provided on July 28 and requested a return call. The social worker received a message stating that a number she had previously used to contact father was no longer in service.
On August 2, 2017, the social worker again left a voice message for father. Later, she contacted the Madera Police Department and requested a welfare check on the minor. She then received a phone message from father asking why the police had come to his residence; he said his old number had been disconnected because he had spent money on the minor that month instead of paying his phone bill. She called him back and told him the number he had provided on July 28 differed from the one he provided that day. He claimed he had scheduled medical and dental appointments for the minor, but could not give further information about them because he was "busy." She requested that he text her that information as soon as possible. He had not yet done so.
Also on August 2, 2017, the social worker spoke with father's Madera County parole agent, Stacey McCormick, who called him " 'very manipulative' " and " 'controlling.' " According to her, father was " 'on the run' " from Santa Cruz County parole for years and moved to Madera County illegally; he did not answer the door when the local police came to his residence. The next day, he went to Santa Cruz County to request a transfer to Madera County because his job, residence, and girlfriend were there. He was told those facts did not justify a transfer, but having a spouse there would. The next day he married his girlfriend.
When McCormick arrived at father's home in December 2016 to assess the requested transfer, father was uncooperative and at times confrontational. He told McCormick she would need to schedule appointments with him; when she said that was not how parole worked, he replied that he would not participate in parole services. He also refused to allow her access to the children in the home. She recommended denying the transfer.
Santa Cruz County again requested a transfer to Madera County in January 2017. When McCormick visited father's home again, he "presented as humbled and slightly more cooperative."
On a home visit in March 2017, McCormick saw marijuana-growing equipment in the garage. Father said it was legal to grow marijuana. She directed him to remove the equipment immediately.
Over the last few months, McCormick had received numerous calls from L.B. and L.B.'s mother alleging domestic violence by father against L.B. Since father had learned of her pregnancy, he had allegedly burned or cut up her clothing, flushed her makeup down the toilet, and severely restricted her diet. McCormick advised reporting these matters to the police.
During a home visit on July 25, 2017, McCormick encountered a hostile L.B., who said she and father were reconciling. She also said father recorded all meetings with McCormick, and would not answer the door if McCormick arrived unannounced. McCormick thought she detected father trying to record her on his cell phone, but he denied it.
During that visit, McCormick encountered the minor in the home. Since McCormick knew only about boys living there, she did not know why the minor was there. The minor was shy and did not converse openly.
The Madera Police Department had numerous contacts with father and L.B. during the period from May 17, 2017 to August 3, 2017. On May 17, L.B. called, saying father was throwing her belongings out of the home; the police made a negative finding for domestic violence and reported that one adult had agreed to leave the home. On May 21, L.B. notified the police that father had returned. On July 2, father called to report that L.B. had slammed him into the wall and was threatening to hurt one of the minor's half siblings. On July 5, L.B. and father called the police in turn: L.B. alleged father was telling the children she and father were divorcing, and he was threatening to change the locks; later, father called and requested officers' presence while L.B. moved out. On August 2, the police were dispatched to do a welfare check of the residence; they found no concerns and provided father with the social worker's number. On August 3, the police were dispatched again to "complet[e]" the premise check.
The jurisdiction/disposition report, filed August 11, 2017, recommended that the juvenile court (1) deny reunification services to father pursuant to section 361.5, subdivision (b)(12) (hereafter "subdivision (b)(12)"), which authorizes denying services to a parent convicted of a violent felony (cf. Pen. Code, § 667.5, subd. (c)(9)), and (2) find that it would not be in the minor's best interest to reunite with father (§ 361.5, subd. (c)).
The police report on the July 2, 2017 incident, stated that father claimed he had recordings showing L.B. had threatened to hurt their unborn child and to accuse him falsely of injuring her, but could not find the recordings.
Father received workers' compensation due to ruptured discs from construction work. He did not know if he could return to that kind of work. He would need to do up to a year of rehabilitation and then find out whether surgery was needed.
Father was present at the minor's birth, but had had no contact with her since she was an infant until these proceedings began.
Father would still like to reconcile with L.B., but wanted to go slowly in introducing her to the minor.
Father had had a medical marijuana recommendation, but after it expired in 2016 he had stopped smoking marijuana. He denied any problem with alcohol or other drugs.
The minor had been placed in a confidential foster home since August 8, 2017. She had had one supervised visit with father since then, plus supervised telephone contact. She had a close relationship with the older half sibling who was detained along with her. Several relatives' homes were being assessed for placement.
Placement with father would not be in the minor's best interest. Although the minor had witnessed domestic violence between mother and her boyfriend and had been physically abused by the boyfriend, father had allowed L.B., with whom he had recent incidents of domestic violence, back into his home and in proximity to the minor; once father and L.B. had engaged in a verbal altercation while the minor was in the home. There had been three calls to the police regarding domestic violence in the household since May 2017, and multiple calls about domestic violence by father and L.B. to parole agent McCormick. Father's conduct showed a lack of "protective capacity" toward the minor.
Reunification services for father would not be in the minor's best interest because: (1) His first contact with her since infancy was on or around July 13, 2017. He did not have a significant relationship with her, which was of his own doing. (2) He had exercised poor judgment in the short time he had spent with the minor. After saying he was divorcing L.B. in part due to her explosive behavior, he invited her back into the home and engaged in a shouting match with her which the minor could hear from the opposite side of the home. (3) He absconded from parole in Santa Cruz County and relocated illegally to Madera County, where he had been largely uncooperative with parole agent McCormick and showed disregard for authority and its rules (to wit, his indoor marijuana grow and his insistence that it was legal). (4) He had failed to comply with the juvenile court's order to keep all parties informed about changes to his address and phone number: his phone number changed three times in a week and the social worker could contact him only by getting the Madera police to do a welfare check. (5) He had failed to ensure that in-person visits between the minor and her half sibling took place, as he canceled their first visit on the ground that he had to work. (6) On August 3, 2017, when the social worker went to Madera to execute a protective custody order and parole agent McCormick directed father to leave "Jump Zone" in Fresno and return home immediately with the minor, a trip that should not have taken more than 45 minutes, he returned with the minor two hours later. Knowing the police and CPS were waiting for him at home, he had stopped for fast food and liquor.
An addendum filed September 12, 2017, reported further contacts with father, parole agent McCormick, and L.B. The department continued to recommend denying services to father, stating that the minor had not shown distress about removal from his custody and she was unlikely to "get lost in the system" because numerous family members were committed to her well-being.
Father asserted that many statements in the jurisdiction/disposition report were false and showed bias against him. (In view of father's extensive testimony at the jurisdiction/disposition hearing, we omit his specific allegations here.) On September 11, 2017, father reported he was enrolled in anger management and parenting programs and had taken several classes, and had tried to enroll in a domestic violence program but could not do so without a referral. A staff person at Doors of Hope confirmed his participation.
McCormick stood by her characterization of father as manipulative, controlling, and initially uncooperative. His improved cooperation since CPS got involved was "solely in order [to] present well to the Court, rather than a genuine change in attitude and a desire to participate in parole." There had been " 'nothing but drama' " between father and L.B. since the case was transferred to Madera County, and McCormick had frequently observed father treating L.B. in a demeaning manner. Recently, McCormick had learned that father was going to Sacramento County without her permission.
L.B. stated that after father moved into her home with Nat. H., he said he was uncomfortable that his name was not on the lease. She therefore rented a new home with him where both names were on the lease. Later, he had her name removed from the lease without her knowledge, telling their landlord falsely that she had moved out. He then held the threat of eviction over her head.
L.B. had not known father was on parole until the Madera Police Department came looking for him on December 21, 2016. A few days later he told her he had to be married to someone in the county to be able to stay there; he proposed to her and they married the same day. She married him only to ensure his parole could be transferred.
After the marriage, father's treatment of L.B. changed drastically; he became controlling and disliked her speaking up for herself. On June 19, 2017, when she said something he did not like, he used physical violence against her. She did not call law enforcement then because she did not want him jailed and Nat. H. to be without a father again. She filed for divorce the next day. She returned to father's home at the start of August 2017 and stayed there for two weeks, but her sons had told her they did not want to live with him. She was not actively working toward reconciling with him.
L.B. said father believed in " 'whoopings' " to discipline children and had beaten Nat. H. bloody with a belt. She had protected him from further beatings by not telling father when Nat. H. had misbehaved.
At the contested jurisdiction/disposition hearing on September 18, 2017, the juvenile court heard testimony from father and the paternal grandmother.
Father testified that he cared for the minor for the first two months of her life, before his arrest in July 2009. The minor visited him in custody for a year until mother put a stop to it. He sent letters to the minor to his and mother's former address until around September 2010, when mother told him she had found someone new; father then sent letters to the new address mother had given him, but starting in December 2010 the letters were returned to him. After that, father had his mother and brother try to reach out to contact mother.
After father's release in December 2013, he unsuccessfully tried to find the minor by contacting mother, the maternal grandmother, and the maternal aunt, but did not file a family law action or a missing person's report. He had contacted private investigators in Santa Cruz, but they turned him down because of "liability issues." On hearing of the court case, he immediately requested and received placement of the minor with him.
While the minor was in father's home, they bonded again; they played constantly and she told him she loved him. He tended to her needs, such as the special diet she required for lactose intolerance. She called him "dad" all the time.
If father received custody of the minor, his workers' compensation payments would provide more than enough money to take care of her until he could resume full-time work.
Father had participated in services even before he learned that they were required. He found the providers on his own because the department never responded to his requests for a list of providers. He was willing to participate in domestic violence services. He had completed five parenting classes and four anger management classes. However, he did not bring proof of his attendance to court, even though his attorney had advised him to do so.
Father had taken anger management classes before, when he was incarcerated as a teenager, and had found them helpful. He was incarcerated then for robbery, the same offense of which he was convicted as an adult.
Father had done regular weekly visitation, during which he and the minor continued to bond. He believed he had visited four or five times. He missed one visit because he was unable to rent a car and drive to Sacramento that time. According to father, his parole officer had given him permission to attend visitation in Sacramento County.
Father admitted his telephone number had changed more than once since this case began. At one time, his 11-year-old son accidentally changed the number. Father had suspended his account twice and had turned his phone off because the company charged too much and changed his plan. He was "in the process of switching [his service] over to another one." He had given the department his cell phone number.
Father was on parole until "[s]ometime in 2018"; he did not know the exact date. He moved to Madera County in July 2016 without permission from his parole officer and did not receive permission to be there until December 2016. Before then, he had moved to Indiana for a year because one of his sons' mothers lived there and he felt his son should get to know her. According to father, a new Santa Cruz County parole officer told him he needed to quit his job, put his son into foster care, and move into a halfway house; he felt he could not abandon his son, who was having problems in school, so he did what he thought was best for him. He never obtained permission from his parole officers to make any of the moves he had made.
From father's point of view, the minor was removed from his custody because of the drama between him and L.B. He told the social worker in July 2016 that he would not be getting back together with L.B. Soon afterward, he missed a call from the social worker because his son had inadvertently changed the phone number; as soon as he found that out, he let her know and gave her a new contact number. But the night before the minor was removed from his home, that number changed and was no longer working.
Father recalled getting an e-mail from his parole officer on August 3, 2016, when he and the minor were at the Jump Zone in Fresno, telling him he needed to head home immediately. It took him an hour because they got stuck in construction on Highway 99; he called the Madera Police Department and texted the social worker to say so, but the social worker did not answer his messages.
The paternal grandmother testified that father and the minor had a good relationship immediately after she was born. When father was in custody, he tried to use the paternal grandmother to contact the minor's mother because the mother ignored his attempts to do so. When the minor was with father after his release from custody, she was very happy and embraced his whole family.
On September 19, 2017, the juvenile court ruled against granting reunification services to father based on extensive oral findings, which we set out below.
After noting that father's statutory disqualification from services placed the burden on him to show by clear and convincing evidence that reunification with him would be in the minor's best interest, the court cited the factors it had to consider in evaluating this question: "[T]he likelihood of success, what current efforts are being made, and/or the current level of fitness[;] [t]he parents' history, the child's history, the gravity of the problems that led to dependency, strength or lack of a bond between the parent and the child as well as the child's need for stability and continuity." (Cf. In re William B. (2008) 163 Cal.App.4th 1220, 1228 (William B.).)
The court had to consider father's "failure to respond to previous services." He had been on parole for five years after his juvenile incarceration, and had had "an opportunity to engage in services to ameliorate his continued violent behavior." But those services were unsuccessful: six weeks after the minor's birth, he went out and committed another robbery. Father's testimony "demonstrated absolutely no level of insight that he had a prior robbery conviction. He went through a number of services and classes and now he has another violent felony, which, again, is robbery. And upon cross-examination . . . was completely unable to see how any of the services that he had been provided either could have or should have led to some level of insight as to his violent behavior."
Observing that "the best predictor of future behavior is past behavior" and that "there are consequences for actions," the court stated that father's loss of touch with the minor and subsequent difficulty in reestablishing contact were "the consequence of his choice to commit a robbery when he had an infant at home that needed his care and parenting attention."
The court found that the evidence supported the parole officer's assessment of father as "very manipulative and controlling." His failure to bring proof of his class attendance to court, despite his attorney's advice, showed "a chronic issue with [father] deciding that he's going to do things his own way. Much as he decided to abscond from parole because he thought it was the best thing for his son for something else to happen. Much as he decided he was not going to pay his phone bill because he[] wanted to do something else with the money." Furthermore, his claim that he had the parole officer's permission to come to Sacramento County for visitation contradicted her statement that he was doing so without permission and thereby violating parole. "So that sort of manipulation and belief that the end justifies the means even when it's unlawful and he's currently on parole, does not allow the Court to conclude that it's in the child's best interest to work on reunification with that individual."
The court also had to consider the "ongoing violence" with L.B. in father's home, to which the minor was subjected. The court noted that the minor reported hearing yelling, screaming, and arguing, but father denied that.
The court did not find father's story about "the cell phone issues" credible. The court could not believe that his 11-year-old son was somehow able to change one of his numbers. The parole officer appeared to have had no difficulty reaching father, but the department could not contact him without going through the parole officer.
The court also noted other discrepancies between father's version of events and other people's. For instance, he testified he was receiving workers' compensation and not working, but the half sibling's stepmother reported that he had canceled a visit between the minor and the half sibling, saying he had to work. Therefore, "[t]o the extent that I'm asked to determine that [father] is . . . 100 percent truthful and that it's the parole officer, the social worker, the sibling's stepmother, and all these other individuals that are lying, the Court is disinclined to do that."
The court noted that though there appeared to be a genuine bond between father and the minor, "when the Department was executing the protective custody warrant, not only did [father] not provide the child with any affection or comfort the child, he felt it appropriate to stay on the telephone with his mother during that process rather than to focus on the child [and] her emotional well-being."
The court found generally: "The best interest of a child is to find that permanent situation for her that's going to assist her in becoming a law[-]abiding, contributing member of society. [Cf. In re D.F. (2009) 172 Cal.App.4th 538, 547.] And [father] is not, yet, that person. I, therefore, have no reason to believe that [father] will be able to role[-]model, educate, or provide his child with such behavior, such that she is likely to turn out in that fashion."
For all of the above reasons, the court found father had failed to meet his burden of showing by clear and convincing evidence that reunification would be in the minor's best interest.
DISCUSSION
I
Abuse of Discretion
Father contends the denial of reunification services to him was an abuse of discretion under section 361.5, subdivision (c).
"The juvenile court has broad discretion in determining whether offering [a parent] reunification services would have been in [the minor]'s best interests. [Citation.] As a reviewing court, we will reverse a juvenile court's order denying services only if that discretion has been clearly abused. [Citation.]" (In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.)
The department asserts there is a split of authority as to the standard of review, citing decisions which have applied a substantial evidence standard. (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1122, 1125; In re G.L. (2014) 222 Cal.App.4th 1153, 1164, 1165; In re A.G. (2012) 207 Cal.App.4th 276, 281, 283; William B., supra, 163 Cal.App.4th at p. 1229.) This assertion is unhelpful because the department does not advocate for either standard or explain why it would matter which one we use in this case. In any event, under either standard, broad deference must be shown to the juvenile court. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We therefore apply that deference to the ruling here.
Section 361.5, subdivision (c) on its face does not limit the scope of evidence the juvenile court may consider in exercising its discretion, and father cites no authority limiting that scope. Nevertheless, father asserts that the court abused its discretion by considering his past failure to benefit from services. He cites inapposite bypass provisions concerning a parent's failure to make reasonable efforts to remedy the conduct that led to the prior removal of a child, (§ 361.5, subd. (b)(3)-(11), (13), (15), (17)) and argues, apparently by analogy to those provisions, that the court could not consider father's failure to benefit from previous services because they did not involve a prior dependency proceeding. That is incorrect.
As the juvenile court noted, section 361.5, subdivision (c) requires the court to consider a parent's history. (William B., supra, 163 Cal.App.4th at p. 1228.) Father's history included juvenile and adult robbery convictions, and an anger management program, which he testified was helpful to him, after the juvenile conviction. Yet, as the court pointed out, completing that program did not keep him from offending again. Nor did it keep him from displaying anger toward L.B. in the presence of a minor already traumatized by domestic violence, or from beating one of his sons bloody despite his claim that he did not use corporal punishment.
Furthermore, father's failure in this respect did not go only to his history, it also went to his current efforts and fitness. (William B., supra, 163 Cal.App.4th at p. 1228.) His inability to control anger toward L.B. in the minor's presence tended to show that his current efforts and fitness as a parent were inadequate. Father seeks to minimize his conduct toward L.B. as a source of risk to the minor, citing his claim that he and L.B. "had separated and were dissolving the marriage," but since they had repeatedly separated and reunited before, any statements about the future of their relationship could not be taken as trustworthy. In any event, the volatility father displayed toward L.B. was indicative of his conduct and character.
The juvenile court also properly considered father's chronic defiance toward parole and authority in general as evidence that he was not presently fit to be a parent. To succeed in reunifying, a parent must be willing to do whatever the juvenile court and the department deem necessary. But father's conduct suggested that he would reject or evade any demands that did not please him. Indeed, he had already violated the court's standing order to furnish basic information such as changes in his telephone number and reports on scheduled health and dental examinations for the minor. Thus, his compliance with court-ordered services could not be relied on. So far as father argues to the contrary by citing the parole officer's statement that he had been more cooperative with her recently, he ignores the parole officer's conclusion that father was simply trying to make himself look good to the juvenile court and had not had a genuine change of heart.
This conduct, as well as father's general lack of credibility, weighed heavily against the conclusion that reunification with him would serve the minor's best interest. As this court has held, in a passage referred to by the juvenile court: "The purpose of imposing a 'best interest of the child' standard ' "is to maximize a child's opportunity to develop into a stable, well-adjusted adult." ' [Citation.]" (In re D.F., supra, 172 Cal.App.4th at p. 547.) Living with a parent who had chronic problems with telling the truth, as well as with following orders and refraining from outbursts of anger, would not maximize the minor's opportunity to grow up stable and well adjusted.
Aside from the points we have already mentioned, father's argument depends on construing the evidence most favorably to himself, including subjects on which the juvenile court expressly found him not credible (e.g., his explanation for his repeatedly changing phone number and failure to keep the department posted about it). Given the deference we must show to the juvenile court's factual findings, father's attempt to reargue the facts cannot succeed.
Father has not shown that the juvenile court abused its discretion by finding that reunification with him would not serve the minor's best interest.
II
Ineffective Assistance of Counsel
Father contends he suffered ineffective assistance of counsel because counsel failed to timely present documentary evidence that would have supported his factual claims. The contention also fails.
At the conclusion of father's testimony, his counsel sought to introduce screen shots purporting to prove that (1) father had tried to contact the social worker on his way back from Fresno when he was summoned to return with the minor on August 3, 2016, to surrender custody, but she did not respond; (2) he had made an "outgoing call to the Madera Police Department" on an unspecified date; and (3) he had tried to contact someone "regarding services and e-mails" and had not received a response. Opposing counsel objected that this offer of evidence was untimely because the material had not been discovered during pretrial. Father's counsel explained that he had not expected opposing counsel to "address the phone calls or the Jump Zone incident as much." The juvenile court ruled that the evidence was "well beyond the scope of where we are at this point in terms of the re-cross," and also excludable "on the basis of Section 352."
Father asserts that the excluded evidence would have served to rebut statements in the social worker's report, and to show he requested permission from his parole officer to travel to Sacramento County. Father's second point, made without citation to the record, is not supported by trial counsel's statements, which do not mention any alleged requests for permission from the parole officer. In any event, given all of the evidence set out by the juvenile court in support of its ruling, there is no reasonable probability that the excluded evidence would have made any difference to the outcome. (Cf. In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711 [showing of prejudice required to prove ineffective assistance of counsel in dependency cases].)
DISPOSITION
The order denying reunification services to father is affirmed.
HULL, Acting P. J. We concur: HOCH, J. RENNER, J.