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In re B.R.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 25, 2012
D060332 (Cal. Ct. App. Jan. 25, 2012)

Opinion

D060332

01-25-2012

In re B.R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. NJ14118)

APPEAL from an order of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed.

In this dependency proceeding, T.R. (Father) appeals from an order of the juvenile court denying his request that his son, B.R. (Son), be returned to his custody at the 12-month review hearing. He contends that there was no substantial evidence to support the juvenile court's underlying finding that it would have been detrimental to return Son to his care. We reject Father's arguments and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Son was born to J.F. (Mother) and Father in June 2005. The parents separated shortly afterward and Father had little contact with Son for a year. Relations between the parents were strained and although Father later started visiting Son, he did not do so regularly or as often as he had been authorized to do by family court order. Father claimed Mother was entirely to blame for the inconsistency of his visits; however, there is no indication in the record that he ever sought the court's assistance to rectify the situation. Instead, Father responded by repeatedly sending vulgar and insulting e-mail and text messages to Mother and calling the police to escort him to Mother's home when he went to pick up Son.

This behavior continued even after Father completed a high conflict intervention program that was designed to help him learn how to avoid or reduce conflict.

In November 2008, the San Diego County Health and Human Services Agency (the Agency) received a referral relating to Son, then three years old, after Mother was placed on a 72-hour hold at a hospital facility. Hospital staff diagnosed her as suffering from psychosis not otherwise specified and anxiety and prescribed antipsychotic medication, but she refused to take it. Father, who cared for Son in Mother's absence, told the social worker that he felt Mother was not mentally stable enough to care for Son.

Son was returned to Mother's care after her release, although she had a "tough time" handling him and the police received calls from her neighbors as a result of Son's screaming. Father went to Family Court to get custody of Son, but was unsuccessful; the family court facilitator reported that although Father had talked about his commitment to Son and demanded more visitation time in the past, he had failed to take advantage of the existing authorized visitation, without offering good reasons, and appeared to be fixated on himself rather than Son. After his effort proved unsuccessful, Father called the social worker and expressed his dissatisfaction with her and the court system. The social worker offered to authorize a weekend visit between Father and Son if Father would provide her with information where he would be staying; Father said he would do so, but did not and ultimately left her a voicemail message indicating that he would not speak with her and that she would have to talk to his attorney to arrange visits.

Although Son was healthy and bright, he exhibited emotional and behavioral problems, including tantrums in which he kicked, screamed and banged his head. He was ultimately diagnosed as suffering from adjustment disorder with mixed disturbances in emotions and conduct.

In January 2009, Mother was placed on a second hospital hold after going to the emergency room with complaints that she had parasites all over her body, that her skin was shedding from the inside and that she had metal in her head. Father had been in Los Angeles and was not having regular visits with Son, although he returned to San Diego that same afternoon to meet with the social worker. Father was adamant that he wanted to take care of Son and told the social worker that he would go back to the family court the next morning to seek custody; Son was placed with his maternal grandparents after Father failed to do so.

After Mother was released from the hospital (again with a recommended medication that she declined to take), the Agency prepared voluntary contracts for both parents. The Agency also referred Son to individual play therapy and parent and child interaction training.

In early February 2009, the Agency took Son into protective custody after discovering Mother having an unsupervised visit with Son in violation of her voluntary contract. It filed a petition alleging that Mother's mental illness rendered her unable to care for Son. The court found that a prima facie showing had been made and ordered Son to be detained at the Polinsky Children's Center, in foster care or with an approved relative or extended family member. It also ordered voluntary services for both parents, with supervised visits for Mother and unsupervised visits for Father. Mother's case plan required her to participate in a parenting class, individual therapy and a psychological evaluation, while Father's plan required him to complete a parenting class.

Father responded angrily when the social worker notified him of this development. The social worker explained that he could not be given custody because he was still in Los Angeles and the earlier family court orders precluded him from taking Son out of San Diego County.

Although Mother insisted that she did not have any mental health issues, she submitted to a psychological evaluation; the evaluator concluded that she had shown symptoms of psychopathology and experienced delusional thinking. The evaluator recommended that Mother undergo a psychiatric evaluation and take medication to stop the delusions, which he felt would ultimately permit her to parent Son on her own. Thereafter, the Agency modified Mother's case plan to require a psychiatric medication evaluation; Mother, however, refused to undergo such an evaluation and resisted seeing an Agency-authorized therapist.

Father, who continued to direct a great deal of anger toward Mother, also insisted that he did not need services. Because he was jobless and reliant on his girlfriend for financial support, he decided to look for work in Los Angeles. In March 2009, after a team decision making meeting involving Father, Mother, the maternal grandparents and the social worker, the Agency filed an amended petition requesting that Son be placed with Father, subject to overnight visits with maternal grandparents and three scheduled phone calls with Mother each week, and that the case be transferred to Los Angeles. The Agency prepared an updated case plan, which Father signed, requiring him to participate in a 12-week anger management program. At the jurisdictional and dispositional hearing in April 2009, the court sustained the amended petition, declared Son a dependent, placed him with Father and transferred the case to Los Angeles. It authorized continuing services to both parents and ordered Mother to undergo a psychiatric medication evaluation.

Within a short time after moving to Los Angeles with Son, Father stopped complying with the agreed-upon visitation schedule for Mother and maternal grandparents, unilaterally canceling in-person visits and interfering with Mother's telephone visits. On one occasion when he did facilitate visitation, Father delivered Son to the maternal grandparents dirty, with a soiled diaper and unbrushed teeth; during the visit, Son had two of the worst tantrums the maternal grandmother had seen. Although Son was adjusting well to living with Father, attending preschool and participating in play therapy, he also missed Mother and experienced crying spells, difficulty sleeping and tantrums.

In the meantime, Mother completed parenting classes, participated in individual therapy and submitted to a psychiatric evaluation. Mother's therapist indicated that Mother had not exhibited any symptoms of a psychiatric disorder during her sessions, although she had shown signs of anxiousness and depression and tended to be long-winded and tangential in her conversation. The psychiatric evaluator opined that Mother presented many "in-between symptoms," including delusions and thought and personality disorders, but that she also had a presumptive diagnosis for Lyme disease, which might have adversely affected her cognitive functioning; he felt that Mother might benefit from psychotropic medication.

The Los Angeles Department of Children and Family Services (the Department) recommended that the court terminate jurisdiction and award custody of Son to Father based on its concerns that Mother was still denying the existence of any mental health issues on her part. Mother opposed the recommendation, requesting joint custody and unsupervised visitation, which were set for a contested hearing. Before the scheduled hearing, however, Father returned to San Diego in search of work and the Los Angeles court transferred the case back to the San Diego superior court.

For reasons that are not clear from the record, the Department was either not equally concerned about Father's failure to comply with the anger counseling component of his case plan or was unaware of that requirement.

Upon his return to San Diego, Father met the newly assigned social worker and expressed frustration that the case was not moving forward; when asked about whether he had undertaken anger management therapy as required by his case plan, he responded that he did not need it and that the requirement was added to his case plan by an "angry social worker [who] doesn't like men." The social worker noted her concern about Father's "extreme oppositional behavior;" however, she inexplicably omitted the previous requirement that he undergo individual therapy to address his anger issues from his updated case plan.

In November 2009, Mother, Father, the maternal grandparents and the social worker participated in a team decision making meeting to develop a regular visitation schedule. The meeting was "extremely tense," with the parents blaming each other for various problems, even after the social worker repeatedly tried to redirect them. The parties were unable to reach an agreement as to a regular visitation schedule, although they did agree that Son would have an extended visit with the maternal grandparents from November 27 to November 30. Almost immediately after the meeting was over, however, Father reneged, informing the social worker that he would not abide by the agreement because he had plans to be in Los Angeles over Thanksgiving.

At a hearing the next day, the court ordered the visit to go forward as agreed at the meeting. The court admonished Father about the necessity of facilitating visitation between Son, on one hand, and Mother and maternal grandparents, on the other, and of keeping the Agency apprised of his current contact information. It granted the maternal grandparents' request that the Agency be required to provide a social worker to facilitate smooth transfers of Son between them and Father. It also agreed with the Agency's concern that the repeated transfers of the case between San Diego and Los Angeles were having an adverse effect on Son, who needed consistent services and visitation, and indicated that it hoped Father was "here to stay" so that the case could move forward. Father refused to acknowledge that the moves had had any impact on Son, instead complaining that he had had to transport Son to San Diego for visits because Mother had refused to travel to Los Angeles for visits.

Beginning in mid-January 2010, the Agency lost contact with Father for over a month and, based on Mother's report that Father planned to return to Los Angeles with Son, sought a court order precluding Son from being taken out of San Diego. After being ordered to appear in court, Father confirmed that he was looking for work in Los Angeles and the court issued an order requiring that Son stay in San Diego. The following month, Mother was involved in an incident at a visitation center wherein she struck a staff member who terminated her visit with Son for her inappropriate behavior; as a result of the incident, Mother's visitation was suspended for a short time.

Mother submitted to another psychiatric evaluation in March 2010. The evaluator rejected the suggestion that Mother's symptoms were the result of Lyme disease and opined that Mother had shown clear positive symptoms of schizophrenia and had "too many active risk factors to be able to care for [Son] independently." Mother disagreed with the Agency's evaluation and sought an opinion from a privately retained psychiatrist; he indicated that although Mother had "real situational problems," she did not have "any thought, mood or behavioral psychiatric disorders" and did not need mental health treatment. Based on Mother's continuing denial of any mental health issues, the Agency recommended terminating reunification services for her.

Father was still out of work and feared that he might become homeless. At his request, the Agency filed a supplemental petition alleging that Father was unable to care for Son, placed Son in foster care with his former foster family and referred Father to the Home Start's Family Self Sufficiency Program. The court sustained the supplemental petition and ordered that both parents receive reunification services and liberal supervised visitation. Thereafter, Father failed to maintain contact with the Agency for several weeks.

Son was behind in his cognitive development and, for the first time since his return to San Diego, he was enrolled by his foster family in preschool and individual therapy. Unfortunately, at the same time, Father stopped visiting with Son, although they spoke on the telephone almost every day. The phone calls were generally appropriate and positive; however, at least on one occasion, the call ended after Father responded to certain of Son's comments by saying that if Son did not stop, he would hang up the telephone and "never call [Son] again."

After Mother began visiting Son on a weekly basis, Father started visits too, although he only spent four of the eight authorized weekly hours with Son. Notwithstanding his failure to fully utilize the authorized visitation, Father demanded that the social worker provide him more expansive visitation, even after he refused to work with Mother to arrange for transportation that would allow him to have more visits. At the contested jurisdictional hearing on the supplemental petition, the court ordered that Father and Mother receive reunification services and supervised visitation, subject to the Agency's authority to change such visitation to unsupervised, including overnights or 60-day trial visits, if appropriate.

In June 2010, Father left the social worker a voicemail message in which he screamed and cursed at her, demanding that she authorize an overnight visit the next day (which was Son's birthday) and saying that he would not take "no" for an answer. The next day, he appeared, unannounced, at the social worker's office and yelled and cursed at her supervisor, saying that the Agency had "screwed him" out of another birthday visit with Son and was not going to do so again. The following month, Father had another explosive outburst when the social worker raised the issue of individual therapy to address his anger, saying "There's no f____cking way I'm going to counseling. I don't need it." He accused the social worker of making things up to keep Son away from him and stormed out.

Over the summer, Mother saw her personal psychiatrist two more times. He continued to opine that Mother's state of mind was within normal limits and that the earlier diagnoses may have resulted from symptoms of Lyme disease and the significant stress that Mother was under at the time those diagnoses were made. He recommended that the Agency return Son to Mother's custody. Mother's therapist also reported that Mother had symptoms of mild schizotypal personality disorder, which might result in delusions when one is under stress, rather than schizophrenia. The therapist pointed out that although Mother had denied having mental health issues, she nonetheless attempted to comply with what the Agency asked her to do and in doing so had gained insight about how to manage her responses to stressful circumstances.

In September 2010, Father found part-time work as a security guard; because he worked primarily on weekends, he thereafter missed five out of seven visits in September and October, despite the foster mother's offers to arrange for alternative visits that did not conflict with his work schedule and her statement that Son was upset at the inconsistency of his visitation. Mother was continuing to have regular and positive visits with Son and asked for unsupervised visits; at a team decision making meeting in October 2010. Father got upset during a discussion of Mother's request and made disparaging comments about her, after being asked to stop several times.

Father found housing and promised to provide the social worker with the address, but did not do so. The social worker acknowledged that Father had made progress with his case plan by taking a number of parenting classes, but was concerned about his inability to control his anger or to express it appropriately, the interference that created in his interactions with Son and his inability to put Son's interests first. Based on the opinions of Mother's therapist and her personal psychiatrist and the positive relationship between Mother and Son, the social worker felt that it was appropriate to move toward reunifying Mother and Son, but emphasized that the process for accomplishing that should be gradual and closely monitored.

At the six-month review hearing in November 2010, Father's counsel admitted that his client had "had some conflicts with the Agency," but argued that the incidents did not raise a protective issue relating to Son. The court disagreed, observing that the conflicts had been "significant" and indicating that they reflected an anger management issue that Father had failed to address. It denied Father's request to have overnight visitation or to give the Agency the discretion to allow such visitation. After the hearing, the social worker met with Father and suggested that he consider changing his weekly visitation to a day other than Saturday, when he often worked, but he became upset and defensive and changed the subject. When the social worker tried to go over his case plan, Father said that no one had ever accused him of having an anger issue until these proceedings, saying "You're all men haters. That's why you're on [Mother's] side." The meeting ended after Father became physically aggressive; as he left, Father called the social worker a "moron."

In early December 2010, Father got into a heated argument with a security guard at a trolley station, when Son was with him. Although Father later maintained that his interaction with the guard was completely professional and appropriate, the incident greatly upset Son, who talked about it afterward in therapy. The foster mother also reported that she saw an increase in negative behavior by Son, including tantrums, after he returned from visits with Father, and that on one occasion Father had upset Son by saying that they were going to go far away together and that Son would not see his mother again.

Later in the month, Son was sexually molested by a 12-year-old neighbor and immediately started therapy with a counselor to deal with the molest issues. The social worker left messages for the parents that there was a new concern relating to Son and that Son was seeing a therapist to address it; she encouraged them to contact her or the therapist for more information. Father refused to return the social worker's call, which he characterized as "one of her old tricks to try to get [him] to call so [she could bully him]" and did not call the therapist either. Mother, however, actively participated in two of Son's therapy sessions.

Father not only refused to contact the social worker, but also refused to go to her office to pick up the transit passes he needed for visits, ostensibly because he was "tired of being harassed and terrorized." Although his in-person visits completely ceased as a result, Father did continue to maintain daily telephone contact with Son. Their phone calls were generally appropriate and positive, but the foster mother had to intervene in calls a couple of times when Father lashed out at, or made inappropriate comments to, Son. Also, Father frequently promised Son that they would visit the following weekend, even after the social worker emphasized that repeatedly making and breaking such promises was very unfair to Son.

Father responded by indicating that what was unfair was that the Agency had taken Son from him in the first place, apparently forgetting that he had requested that the Agency do so.

Meanwhile, Mother progressed to overnight and full weekend visits and the Agency authorized her to have a 60-day trial visit with Son beginning in June 2011. Although Father stopped working as a security guard in May 2011, he still did not visit Son, claiming he was too busy looking for another job. Father also continued to insist that he did not need anger therapy and refused to participate in individual counseling.

At the contested 12-month review hearing in June 2011, the court ordered family maintenance services for Mother and reunification services for Father. It described Father's behavior as "appalling" and found that returning Son to his care would be detrimental to Son because of Father's failure to address his anger issues, his inability to control his behavior, his consistent assignment of blame to others and his repeatedly putting his own interests ahead of Son's. The court placed Son with Mother.

Father appeals.

DISCUSSION

1. Standard of Review

When the sufficiency of the evidence to support a finding or order is challenged on appeal, we review the entire record to determine whether substantial evidence (that is, evidence that is reasonable, credible and of solid value) supports the finding or order. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) In doing so, we cannot reweigh the evidence or evaluate the credibility of witnesses and must resolve any evidentiary conflicts in favor of the party who prevailed below. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The appealing parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) This burden is described as "daunting" because we must uphold a juvenile court's order or judgment that is supported by substantial evidence, even if substantial evidence supporting a contrary conclusion also exists. (In re Dakota H. (2005) 132 Cal.App.4th 212, 230.)

2. Sufficiency of the Evidence to Support a Finding of Detriment

A court is required to order the return of the child to the physical custody of the child's parent at the 12-month review hearing unless it finds, by a preponderance of the evidence, that the return of the child to his or her parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (Welf. & Inst. Code, § 366.21, subd. (f); Cal. Rules of Court, rule 5.715(b)(1); In re Joseph B. (1996) 42 Cal.App.4th 890, 899, 901.) The social worker has the burden of establishing that a substantial risk of detriment exists. (§ 366.21, subd. (f).)

Statutory references are to the Welfare and Institutions Code.
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Whether a parent has regularly participated in court-ordered programs and made progress in such programs is a relevant consideration in determining whether returning custody to that parent creates a substantial risk of detriment. (§ 366.21, subd. (f).) In fact, evidence that the appealing parent has failed to participate or make progress with his case plan constitutes a prima facie showing of a substantial risk of detriment, requiring him to present evidence rebutting that showing. (§ 366.21, subd. (f); Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.) Here, Father does not dispute that his case plan included a requirement that he participate in counseling to address anger, that the Agency had provided him with referrals to therapists for this purpose or that he had refused to engage in such therapy. Given these concessions that a prima facie showing of a substantial risk of detriment exists, the question on this appeal is whether Father has rebutted this showing. (Robert L. v. Superior Court, supra, at p. 625.)

Father points to the evidence that he had taken parenting classes and that Son did well while living with him in Los Angeles as sufficient rebuttal evidence, arguing that, with few exceptions, issues regarding Father's "oppositional behavior" did not occur in Son's presence or affect him. We disagree. The record is replete with evidence of incidents in which Father had angry and rude outbursts, directed at many different people, including Mother, most of the social workers who were assigned to this case, Son's foster mother and the security guard, who was a complete stranger to Father. These incidents occurred without any apparent regard to whether Son was present or not and given Son's behavioral and emotional problems, the juvenile court could reasonably have concluded that Father's inability to control his temper created a risk of substantial detriment if Son was returned to him, particularly in light of Father's refusal to acknowledge that anger was even an issue for him.

The evidence of other conduct by Father provides further support for the court's finding of a substantial risk of detriment. Father's haphazard approach to visitation (his own and that of facilitating visitation with Mother and maternal grandparents) and his repeated moves between San Diego and Los Angeles completely disregarded Son's needs for stability and consistency. In addition, Father's numerous inappropriate statements to Son, including derogatory comments about Mother, insinuations that Son would never see her again and statements that he himself would refuse to maintain contact with Son again unless Son behaved in the manner he wanted, which occurred over the course of these proceedings, caused Son great distress. Such evidence suggests that Father either lacked insight into the impact that his conduct and statements had on Son or, as the juvenile court suggested, was too self-absorbed to put Son's interests above his own. Either way, such behavior created a serious risk of emotional harm to Son.

The foregoing evidence is sufficient to support the juvenile court's conclusion that returning Son to Father's custody would have been detrimental to Son. Accordingly, we affirm the order.

DISPOSITION

The order is affirmed.

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IRION, J.

WE CONCUR:

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MCCONNELL, P. J.

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MCDONALD, J.


Summaries of

In re B.R.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 25, 2012
D060332 (Cal. Ct. App. Jan. 25, 2012)
Case details for

In re B.R.

Case Details

Full title:In re B.R., 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 25, 2012

Citations

D060332 (Cal. Ct. App. Jan. 25, 2012)