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In re A.F.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 31, 2012
D060047 (Cal. Ct. App. Jan. 31, 2012)

Opinion

D060047 Super. Ct. No. SJ12521A

01-31-2012

In re A.F., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Az.F., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from orders of the Superior Court of San Diego County, Ana L. Espana, Judge. Affirmed.

Az.F. (the father) appeals juvenile court orders made at the jurisdictional and dispositional hearing under Welfare and Institutions Code sections 360, subdivision (d) and 361, subdivision (c), regarding his daughter, A.F. He contends there was not substantial evidence to support the court's finding it would be detrimental to place A.F. with him, and the court erred by not considering whether reasonable efforts were made to prevent removing her from parental custody and whether there were less drastic alternatives to removal. We affirm the orders.

Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTUAL AND PROCEDURAL BACKGROUND

On March 9, 2011, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (j) on behalf of then 11-year-old A.F., alleging her mother, S.S., had physically abused A.F.'s seven-year-old brother, A.S., and A.F. was at substantial risk of suffering physical abuse. The petition alleged S.S. had hit A.S. with a spoon, causing bruising and swelling to his hand; and A.S. said S.S. and the maternal grandmother had hit and punched him, A.F., and their younger brother, A.W. The court ordered the children detained.

The family had a history of referrals to child protective services for domestic violence, abuse and neglect. All three children described harsh discipline in the home. S.S. had been referred to resources designed to help her use proper parenting methods, but she continued to physically abuse the children.

The father said he had last seen A.F. in October 2010. He said S.S. made it difficult for him to visit A.F., and most of their arguments had been about her hitting the child. The father's criminal history includes arrests for cruelty to animals, assault with a deadly weapon and inflicting corporal injury to a spouse or cohabitant. He asked to be considered for placement. He said he had been a foster child himself, was seeking employment and wanted to offer A.F. a stable home.

The social worker reported there had been a substantiated referral to child protective services regarding a violent confrontation between the father and S.S. when A.F. was present. S.S. said the father had threatened to kill her and everyone else in the home, and there were other incidents of domestic violence. The father said he had participated in domestic violence prevention treatment, but had not completed the treatment program.

A.F. was developmentally on target. S.S. said A.F. had been diagnosed with attention deficit hyperactive disorder, but was not taking medication. The social worker said A.F. was upset about her lack of contact with the father and was being defiant and acting out in the foster home. In May the social worker reported the father had not called A.F. for more than one month and had not been visiting her. He attended A.F.'s graduation in June and made various excuses for why he had not been visiting.

At the jurisdictional and dispositional hearings in June the court received documentary evidence and heard testimony from the social workers and the father.

The social worker who began working on the case in late March testified that when she first talked with the father, he asked that A.F. be placed with him. The social worker recommended the father participate in a domestic violence treatment program and parenting education. She said he had had little contact with A.F., and the visitation center had stopped facilitating visits because he did not appear for visits that had been scheduled. The father agreed it would be better to wait until he had his own residence before A.F. was placed with him. The social worker said she had received a telephone call from a woman who said she was the father's girlfriend. The woman had indicated that because of the father's violent nature, placement with him would not be in A.F.'s best interests. She later called and retracted her statement.

The father testified he did not believe in physically disciplining a child and once when S.S. had hit A.F., he was arrested for saying he would do something to S.S. He was arrested again two years later for domestic violence with another woman. He attended domestic violence prevention classes, but did not complete the program and spent time in custody. He was later involved in a violent confrontation with another woman. He said he had a job and had room for A.F. in his home. He said he had visited A.F. four or five times since she became a dependent of the court.

After considering the evidence and argument by counsel, the court found the allegations of the petition to be true. It removed custody from S.S., found it would be detrimental to place A.F. with the father and ordered her placed in foster care.

DISCUSSION

I

The father contends there was not substantial evidence to support the juvenile court's finding it would be detrimental to place A.F. with him.

Section 361.2, subdivision (a) provides that if the child is removed from the custodial parent and the noncustodial parent seeks custody, the court must place the child with that parent unless it finds that placement would be detrimental to the child's safety, protection, or physical or emotional well-being. The court's finding of detriment under section 361.2, subdivision (a) must be made by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)

At disposition, the juvenile court considers all relevant evidence that refers to the allegations of the petition, and it considers the conditions as they existed at the time of the hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) " ' "The rule is clear that the power of the appellate courts begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." [Citation.]' [Citation.]" (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The court's decision not to place A.F. with the father is fully supported. The father had had little contact with A.F. while she lived with S.S. and during the time she was a dependent of the court. After A.F. was taken from S.S.'s custody, the father did not spend much time with her, missed visits and did not call. Although he said he had disagreed with S.S.'s physical discipline of A.F., he did not do anything to correct that conduct. The father had a history of criminal activity and domestic violence, including having violent confrontations with three different women and domestic violence in A.F.'s presence. He began a domestic violence treatment program, but did not complete the program and was imprisoned. In addition, the father's housing situation was unstable. Substantial evidence supports the court's decision that it would be detrimental to A.F. to place her with the father.

II

The father also asserts the court erred by finding there were no reasonable alternatives to removal from parental custody.

Assuming the father has preserved this issue on appeal, we find no error. In the father's reply brief, he clarifies he is arguing the court erred by not considering whether reasonable efforts were made and less drastic alternatives were considered to prevent or eliminate the need for removal from S.S.

The father acknowledges that when the court determined not to place A.F. with him, it was not required to make a reasonable efforts finding as to him. (See section 361.2, which governs placement where removal from the custodial parent has already occurred.)

The father's contention the court erred by not making the required findings when removing custody from S.S. is without merit. At the hearing, the court stated: "I do find by clear and convincing evidence that removal of the child from the home of [S.S.] at this time is appropriate under [section] 361[, subdivision] (c)(1) of the Welfare and

Institutions Code." It is presumed that official duty has been regularly performed. (Evid. Code, § 664.) There is no indication in the record that the court did not properly consider whether reasonable efforts were made to prevent or eliminate the need to remove A.F. from S.S.'s custody and whether there were less drastic alternatives to removal.

Section 361, subdivision (c)(1) states no child shall be removed from the parent's physical custody unless the court finds 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 or guardian's physical custody. . . ."
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DISPOSITION

The orders are affirmed.

_________________

HALLER, J.

WE CONCUR:

_________________

McCONNELL, P. J.

_________________

O'ROURKE, J.


Summaries of

In re A.F.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 31, 2012
D060047 (Cal. Ct. App. Jan. 31, 2012)
Case details for

In re A.F.

Case Details

Full title:In re A.F., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 31, 2012

Citations

D060047 (Cal. Ct. App. Jan. 31, 2012)