Opinion
E082563
06-03-2024
In re A.Y., a Person Coming Under the Juvenile Court Law. v. AARON Y., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. David Guardado, Deputy County Counsel, Tom Bunton, County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. J296320 Steven A. Mapes, Judge. Affirmed in part, vacated in part, and remanded with directions.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
David Guardado, Deputy County Counsel, Tom Bunton, County Counsel for Plaintiff and Respondent.
OPINION
MENETREZ, J.
Aaron Y. (Father) appeals from the juvenile court's dispositional order regarding his daughter, A.Y. The court removed A.Y. from Father's custody, placed her with J.Y. (Mother), and ordered family maintenance services for Mother. The court did not order visitation for Father. On appeal, Father argues that the record does not contain substantial evidence to support the court's jurisdictional findings under subdivisions (a) and (b)(1) of Welfare and Institutions Code section 300. (Unlabeled statutory citations refer to this code.) He also argues that there was not substantial evidence that visitation would be detrimental to A.Y. We affirm the court's jurisdictional findings. As to visitation, we vacate the court's visitation order and remand for the court to reconsider the issue.
BACKGROUND
I. Prior dependency case
A.Y. was the subject of a prior dependency case that started in July 2021. At the time, the child was 13 years old and lived with Mother, and the child welfare department received a referral alleging verbal abuse by Mother. The referral also alleged that A.Y. had a history of suicidal thoughts and cutting herself. During the social worker's initial interview with A.Y., the worker observed Mother verbally abuse the child. A.Y. reported that Mother had physically and verbally abused her throughout her childhood, including by punching her in the back, slapping her arms, and pushing her. She also said that Mother drank alcohol every day and that they had just come from a restaurant, where Mother had four drinks and drove them while intoxicated. A.Y.'s adult sister also said that Mother drank alcohol "all [of] the time" and that Mother was physically and verbally abusive when the sister was a child.
In January 2022, the Riverside County juvenile court found true allegations against Mother and found that A.Y. was described by section 300, subdivisions (b)(1) and (c). The court removed the child from Mother's custody, placed her with Father, granted Father sole legal and physical custody, ordered supervised visitation for Mother (once per week for two hours), and terminated jurisdiction.
II. Detention in the present case
San Bernardino County Children and Family Services (CFS) received a referral in February 2023 alleging that 15-year-old A.Y. had "quite a bit of bruising" on both arms, and the child disclosed to school personnel that the bruises were caused by Father. Father said that he was aware of the bruises and that they were caused by A.Y. bumping into things at work. When the social worker attempted to interview A.Y. in the home, the child said that she did not want to talk there because "he's going to be mad." She appeared to be nervous but said that she felt safe in the home at the moment. She did not have any visible bruises at the time (which was one week after the reporting party saw the bruises on the child's arms). A.Y. had been diagnosed with depression and took medication (Zoloft) to treat it. Father did not know the name of the medication and had to get the medication from A.Y to show it to the social worker. The worker advised Father that he should be administering the medication to the child to ensure that she was not overmedicating. When the worker asked Father if A.Y. was in therapy, he said that he was working on it but was having difficulty because he did not initially have her medical information.
The social worker interviewed A.Y. at school four days later. Regarding the allegations, the child reported that she and Father had a disagreement because he would not let her get a dog. When she attempted to walk away from him, he grabbed her by the wrist and pushed her against the wall. A.Y. said that there had not been any prior similar incidents. The social worker asked if A.Y. had ever been touched inappropriately, and the child began to cry and said "yes." She believed that Father had drugged her roughly two months earlier. She said that she went to bed after eating dinner; when she awoke, "her vaginal area felt weird," and she was groggy. Her allegations were investigated, but "no one believed her." (A later CFS report noted that a January 2023 investigation into alleged sexual abuse by Father was closed as "[i]nconclusive.")
A.Y. also reported that Father drinks "a lot of beer every day," but he did not drink and drive with her. Father said that he drank a "couple" of beers twice per week.
CFS and Father agreed that he would transport A.Y. to a youth shelter pending further investigation, but A.Y. refused to leave school with Father. The child was crying hysterically. Law enforcement escorted A.Y. to the school office, where she told the social worker that she did not want to leave with Father because he was going to be mad. The worker explained that A.Y. would be going to a youth shelter and that the worker would follow her and Father. The child said that she would feel better if the worker stayed on the phone with her during the ride, which the worker did.
Mother reported that she had not had in-person visits with A.Y. since January 2022, although the two had talked on the phone. A.Y. told Mother that she was afraid of Father. But Mother was not aware of the bruises on the child's arms. Mother had completed a substance abuse class and was working on a parenting class. She said that she was not currently using any drugs or alcohol. She had also been diagnosed with depression and took medication to treat it.
A.Y.'s adult sister reportedly was concerned about the child's safety. The sister alleged that she had been sexually assaulted by Father from age 10 or 11 until she moved out of the home at age 18. She also said that both parents were alcoholics, and she did not believe that A.Y. was safe with either parent.
CFS referred A.Y. for a forensic medical exam. A.Y. told the examiner that several weeks ago Father was mad at her, and he grabbed her arms and pushed her into the wall. She reported another incident in which Father was "drunk" and threatened to hit her. He demanded that she give him her phone or he would "'smash it on [her] face.'" She said that Father went to a bar almost every night and had a refrigerator full of beer in the garage. A.Y. worked four to five nights per week at a restaurant, and Father would drink and drive when he picked her up from work. She reported that the car smelled like beer. He sometimes returned to the bar after he picked her up from work. She also told the examiner that she had been cutting herself since 2019 but stopped about 19 days earlier. She had thought about harming herself and took a number of Zoloft pills roughly one month ago. Although the bruises on the child's arms were no longer visible, A.Y. provided photographs of her arms and the bruises to the social worker. The examiner determined that the photographs of the bruises were consistent with A.Y.'s report that Father grabbed her arms. The examiner further determined that A.Y. had numerous hyperpigmented scars on her left arm that were consistent with cutting and scattered hyperpigmented scars on her legs, abdomen, and back.
CFS filed a petition under subdivision (a) of section 300 alleging that Father physically abused A.Y., placing her at risk of further physical harm. The petition also alleged that A.Y. was described by subdivision (b)(1)(A) and (D) of section 300, because Father physically abused her, Father had an untreated substance abuse problem, and Mother had an untreated substance abuse problem.
At the detention hearing in March 2023, the court detained A.Y. from the parents. The court ordered no visitation for Father, finding that visitation with Father would be detrimental to A.Y.'s physical or emotional well-being. The court explained: "Based on the information in the [detention] report, there is detriment between Dad and Daughter. I'll see what more is brought forth at the [jurisdiction and disposition hearing] related to that. The particular concern is drugging and molestation reported or suspected by the daughter." The court ordered weekly supervised visits of two hours for Mother.
III. Jurisdiction and disposition
When interviewed for the jurisdiction/disposition report, Mother stated that there had been domestic violence in the parents' marriage. (They were married from 2001 to 2010.) She obtained a restraining order against Father in Colorado in 2010. CFS found records showing that a Colorado criminal court had issued a restraining order protecting Mother from Father. Mother reported that Father drank every day when they were together and "'always had a drinking problem.'"
Mother denied that she had a substance abuse problem. She had recently completed an outpatient substance abuse treatment program and had not consumed alcohol since September 2022. She was currently attending counseling and parenting classes and wanted to regain custody of A.Y. Mother acknowledged that she had unsupervised contact with A.Y. in December 2022; she said that A.Y. called her because A.Y. was suicidal and having problems at school, and Mother went to A.Y.'s workplace to give the child some pamphlets.
Father denied that he had grabbed and pushed A.Y. He stated that she initially told school personnel that boxes fell on her at work and then later said that Father assaulted her. Father said that A.Y. started "displaying behaviors" after she had unsupervised contact with Mother in December 2022. He acknowledged that he drank but denied that he had a substance abuse problem. He reportedly drank three to four beers twice per week. He stated that he did not drink when he had to drive A.Y. around for school or work. In 2010, he pled guilty to a domestic violence offense in Colorado after Mother claimed that he hit her with a car door. He completed domestic violence classes and probation. The police report of the incident showed that Father's brother and nephew witnessed the incident and confirmed Mother's account.
A.Y. again reported that she suffered the bruises on her arms when Father grabbed her and pushed her against the wall. She had initially told the school and Father that she got hurt at work because she was scared to tell the truth. She stated again that Father drank "'a lot of beer,'" that he would pick her up from work after he had been drinking at the bar, and that the car smelled like alcohol. She also said that Father got angry when he drank. For instance, he once told her that she was pathetic and stupid. On another occasion, she told him that she was depressed, and he responded, "'I'm depressed too, but you don't hear me complaining.'" She also reported that Mother had her in therapy, which A.Y. liked, but Father took her out of therapy. He told Mother that therapy was not going to work. He later consented to school-based counseling, and A.Y. did three sessions of that.
A.Y. said that Mother did not have an untreated substance abuse problem, because Mother was taking classes. She had been talking to Mother even though she was not supposed to have unsupervised contact. She wanted to have visits with Mother and live with Mother, but she did not want to have any contact with Father. She felt that Father was mad at her, and she did not feel safe with him.
In May 2023, the court granted CFS's request to place A.Y. in a short-term residential therapeutic program (STRTP). A therapist completed a qualified individual assessment as part of that placement. (§ 4096, subd. (g) [placement in an STRTP requires a "qualified individual" to conduct an assessment]; Seiser &Kumli, 1 Cal. Juvenile Courts Practice &Procedure (2024) § 2.127[11] ["Children . . . being considered for placement or placed in an STRTP on and after October 1, 2021, must be assessed by a qualified individual (QI) as a condition of Title IV-E funding eligibility"].) The qualified individual reported that A.Y. "exhibit[ed] symptoms of depression, anxiety, and traumatic stress as evidenced by isolation, crying spells, suicidal ideation/gestures and other self-harming impulses." When A.Y. arrived at the STRTP, she had a blade in her phone but gave it to her therapist. She told the therapist that she wanted to stop cutting. A.Y. became guarded when asked about her relationship with Father, and she declined to answer questions. But she said that she had a close relationship with Mother and wanted to live with Mother.
By June 2023, A.Y. was stable in her STRTP placement and was no longer cutting. Mother's therapist and parenting class instructor gave Mother a positive progress report. Both A.Y. and Mother requested that Mother's visits be increased and that A.Y. be placed in Mother's care. At an interim hearing in June 2023, the court ordered unsupervised visits for Mother. After that, Mother had unsupervised visits at least twice per week for eight hours and progressed to overnight visits. By the end of July 2023, CFS had placed A.Y. in Mother's home. A.Y. continued to refuse any contact or visits with Father.
From March to June 2023, Mother tested negative for all substances seven times and had no positive tests. During the same period, Father tested negative for all substances eight times and also had no positive tests. He completed a parenting class and 12 sessions of individual counseling.
At the jurisdiction and disposition hearing in November 2023, the court found true the allegations against Father. It amended the allegation against Mother to state that she had a history of alcohol abuse, and the court deleted language characterizing her problem as untreated; the court then found the amended allegation true. After declaring A.Y. a dependent, the court removed A.Y. from Father and placed the child in Mother's custody. The court also ordered family maintenance services for Mother but found that it was not in A.Y.'s best interest to offer Father discretionary services, so the court denied Father services.
Regarding visitation, Father stated that he wanted to have contact with A.Y., but he respected her decision to have no contact. He said that he would nevertheless object to an order for no visitation, and he wanted visitation to happen should A.Y. want contact to resume. CFS recommended that "if the child has some different view of contact with the father or visitation, that it's by Court standing orders, and that way we will have that option available." The court responded: "That's fine. Any contact with Father will be by standing orders related to the child and the father." The minute order for the hearing states: "Visitation: Standing orders for changes to visit between minor and Father." (Some capitalization omitted.) The court also adopted CFS's recommended findings and orders, which said nothing about visitation.
DISCUSSION
Father argues that the record does not contain substantial evidence to support the jurisdictional findings against him. He also argues that there was not substantial evidence to support a finding that visitation with him would be detrimental to A.Y. We reject the challenge to the jurisdictional findings, but we vacate the visitation order and remand for the court to reconsider visitation.
I. Mootness
As a preliminary matter, CFS argues that Father's challenge concerning the jurisdictional findings is nonjusticiable or moot, because the court took jurisdiction on the basis of findings against both Mother and Father, and no one has challenged the jurisdictional findings against Mother. It is true that the court need only find that "one parent's conduct has created circumstances triggering section 300 for the court to assert jurisdiction over the child." (In re I.A. (2011) 201 Cal.App.4th 1484, 1491.) An appeal may be nonjusticiable if it challenges the jurisdictional findings against one parent but not the findings against the other parent, because any reversal would not affect the court's jurisdiction. (In re M.W. (2015) 238 Cal.App.4th 1444, 1452.) In that case, it is often said that the appellate court cannot grant the appellant any effective relief. (In re I.A., at p. 1491.) But if we can grant relief that has a "'practical, tangible impact on the parties' conduct or legal status,'" then the appeal is not moot. (In re D.P. (2023) 14 Cal.5th 266, 277.) "For example, a case is not moot where a jurisdictional finding affects parental custody rights [citation], curtails a parent's contact with his or her child [citation], or 'has resulted in [dispositional] orders which continue to adversely affect' a parent." (Id. at pp. 277-278.)
Father is not merely challenging the jurisdictional findings against him. He also challenges part of the court's dispositional order, namely, the visitation order. That order curtailed his contact with A.Y. and adversely affected him. Accordingly, to the extent that the court's visitation order was based on its jurisdictional findings against Father, his jurisdictional challenge is not moot. We therefore consider the merits of his challenge.
II. Substantial evidence to support jurisdiction
Subdivision (a) of section 300 permits the juvenile court to take jurisdiction over a child if the "child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian."
Section 300, subdivision (b)(1), allows the court to assert jurisdiction if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of" the "failure or inability of the child's parent or guardian to adequately supervise or protect the child" (§ 300, subd. (b)(1)(A)), or by the "inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's . . . substance abuse" (§ 300, subd. (b)(1)(D)).
We review the court's jurisdictional findings for substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.) We examine the record in the light most favorable to the court's findings and draw all reasonable inferences from the evidence to support the findings. (Ibid.)
Father argues that the bruises on A.Y.'s arms did not constitute serious physical harm with the meaning of subdivisions (a) and (b) of section 300, nor was there evidence of a substantial risk of serious physical harm. Assuming for the sake of argument that the bruises did not constitute serious physical harm, the record contains substantial evidence that A.Y. was at substantial risk of serious physical harm inflicted nonaccidentally. The "court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted." (§ 300, subd. (a).) The incident that caused the bruises occurred when Father and A.Y. had a fight. A.Y. said that Father got angry when he drank and that he drank every day. He had previously threatened to "'smash'" her phone on her face when he was intoxicated, and A.Y. expressed her fear of Father on more than one occasion. He also had a domestic violence conviction for hitting Mother with a car door. The court could reasonably infer from all of that evidence that there was a substantial risk that Father would get angry again when he was drinking and inflict nonaccidental, serious harm on A.Y.
Moreover, there is ample evidence that A.Y. was at substantial risk of serious physical harm under section 300, subdivision (b)(1), because of Father's substance abuse. In addition to A.Y.'s statements that Father drank every day, her older sister described Father as an alcoholic, and Mother said that he had a drinking problem when they were together. The evidence also showed that he drove A.Y. after drinking at a bar, and the car smelled of alcohol. The court could reasonably conclude that driving A.Y. while under the influence created a substantial risk of serious physical harm to the child.
In addition, there is substantial evidence that Father was neglecting A.Y.'s mental health. She was taking Zoloft to treat depression, but Father did not know the name of the medication and did not administer it. She told the forensic medical examiner that she recently had thoughts of harming herself and ingested a number of Zoloft pills. The qualified individual's assessment also noted suicidal ideation. And A.Y. was cutting herself according to her own statements, the forensic medical exam, and the STRTP therapist to whom she surrendered a blade. Yet there was evidence that Father had taken her out of therapy. Further, when A.Y. noted that Father became angry when drinking, she said that he called her pathetic and stupid and told her, "'I'm depressed too, but you don't hear me complaining.'" The court could reasonably infer from the foregoing evidence that because of his alcohol abuse, Father was not providing adequate mental health care for A.Y., creating a substantial risk of serious physical harm to her.
Father contends that his drinking was in the past, given that he tested negative during the proceedings, so A.Y. was not currently at substantial risk of serious physical harm. His eight negative tests in a roughly three-month period did not compel the conclusion that his alcohol abuse no longer posed a substantial risk of serious physical harm to A.Y. He never acknowledged having a problem, nor was there evidence that he was in a treatment program. And even if he remained sober for that relatively short period, "[i]t is the nature of addiction that one must be 'clean' for a much longer period . . . to show real reform." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.)
For all of these reasons, we conclude that the record contains substantial evidence to support the jurisdictional findings against Father.
III. Visitation order
Father argues that there is insufficient evidence to support a finding that visitation with him would be detrimental to A.Y. We disagree that the court was required to make a detriment finding to deny him visitation. We nevertheless vacate the visitation order and remand for the court to reconsider the issue, because the basis and precise terms of the order are unclear.
Father asserts that section 362.1, subdivision (a)(1), governs visitation in this case, and the statute states that the court "shall provide" for visitation. (§ 362.1, subd. (a)(1)(A).) But the statute does not apply. It applies if the court makes "any order placing a child in foster care" and orders reunification services. (§ 362.1, subd. (a).) The court did neither here. It placed A.Y. with Mother and ordered family maintenance services for Mother, and it declined to order services for Father. (§ 361.2, subd. (b)(3) [if the court removes the child from the parent and places them with the previously noncustodial parent, then it may order reunification services be provided to the parent from whom the child is removed, or it may order that services be provided solely to the parent who is assuming custody subject to the supervision of the court].)
Father cites no authority for the proposition that he was entitled to visitation unless it would be detrimental to A.Y., nor are we aware of any such authority. Instead, under circumstances similar to those here, the court has discretion to permit or deny visitation. For instance, the court has discretion to order visitation when the court bypasses reunification services, or when it removes the child from a parent and grants sole legal and physical custody to the other parent and closes the case. (§ 361.2. subd. (b)(1) [if the court places the child with a previously noncustodial parent, then it may order sole legal and physical custody to that parent and "may also provide [for] reasonable visitation" by the other parent; the court shall then terminate jurisdiction]; § 361.5, subd. (f) [if the court bypasses reunification services for a parent, then it "may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child"]; In re J.N. (2006) 138 Cal.App.4th 450, 457 [§ 361.5, subd. (f) "gives the court discretion to allow the parent to continue visitation with his or her child"].)
But it is an abuse of discretion to allow the child's wishes to be the sole factor determining whether visits occur. (In re Julie M. (1999) 69 Cal.App.4th 41, 51; id. at p. 48 [the court abused its discretion by "giving the children absolute discretion to decide whether [their mother] could visit with them"].) "The discretion to determine whether any visitation occurs at all 'must remain with the court, not social workers and therapists, and certainly not with the children.'" (In re S.H. (2003) 111 Cal.App.4th 310, 318.)
It is not clear in this case whether the court relied solely on A.Y.'s wishes to deny Father visitation, whether other evidence factored into its decision to deny visitation, or whether it was ordering visitation with Father according to "standing orders" whose terms do not appear in the record. Because the terms and basis for the court's visitation order are unclear, on this record it is impossible for us to assess whether the order constituted an abuse of discretion. We accordingly vacate the visitation order and remand for the court to reconsider visitation and enter an order that is sufficiently clear to allow for meaningful appellate review.
DISPOSITION
The juvenile court's visitation order is vacated, and the matter is remanded for the court to reconsider visitation between A.Y. and Father, consistent with this opinion. The jurisdictional and dispositional findings and orders are otherwise affirmed.
WE CONCUR: MCKINSTER ACTING P. J., RAPHAEL J.