Opinion
D060625
05-04-2012
In re HANNAH T., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TROY S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ014351)
APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed.
Troy S. appeals an order entered at the six-month review hearing in the juvenile dependency case of his daughter, Hannah T. Troy contends substantial evidence does not support the finding that placing Hannah with him would be detrimental to her. We affirm.
BACKGROUND
In October 2010 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for 14-and-one-half-year-old Hannah. The petition alleged her mentally ill mother, Cheri T., wandered around their apartment complex speaking incoherently, screamed at neighbors, spit at children and yelled at Hannah and slapped her face. Cheri was placed on a Welfare and Institutions Code section 5150 hold, and Hannah was detained in a foster home.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
When the petition was filed, Troy could not be found. In November 2010 the Agency learned he was living in Pennsylvania and notified him of the juvenile court case. On November 16, a social worker interviewed Troy by telephone, and he related the following information. He was at the hospital when Hannah was born. He last saw her in 1996, when she was two months old, before his six-month military deployment. When the deployment ended, Cheri served Troy with an order prohibiting him from having any contact with Hannah. Because Troy was deployed frequently, the family court denied his request for visitation. In 1997 Troy left the military and moved to Pennsylvania. He did not request visitation because of the distance to California. He sent cards and gifts on holidays and birthdays, but was unsure if Hannah received them. He paid child support. He was unaware of Cheri's mental health history before he read the dependency petition. He wanted custody of Hannah.
On November 18, 2010, the court appointed counsel for Troy. On November 24, the social worker gave Troy the telephone number of Hannah's foster parents. By December 3, Troy was calling Hannah regularly. By December 29, they were communicating over the internet by voice and video. Troy called Hannah every day and they usually spoke for an hour. Hannah said the conversations were awkward because they ran out of things to say.
On January 5, 2011, the court entered a true finding on the petition. On January 13, Troy told the social worker "he would eventually like to obtain custody [of] Hannah . . . but agreed [they] must build on their relationship before this occurs." The social worker suggested Troy plan a short trip to San Diego.
At the dispositional hearing on January 27, 2011, the court ordered Hannah removed from Cheri's custody (§ 361, subd. (c)(1)) and placed in foster care. The court found that Troy was Hannah's biological father, denied his request for presumed father status and ordered reunification services (§ 361.5, subd. (a)) composed of supervised visits, conjoint therapy and a parenting course. Although Troy did not request custody, the court found it would be detrimental to place Hannah with him until he re-established a relationship with her and provided stable and appropriate housing (§ 361.2, subd. (a)).
Cheri died in May 2011. Troy and Hannah had their first face-to-face visit on June 18 in San Diego. The social worker supervised the visit. Troy and Hannah had another visit on June 19, supervised by the foster mother. Troy and Hannah were happy to see each other, enjoyed each other's company and talked with each other. Hannah said she felt comfortable with Troy and believed he wanted to get to know her. She hugged him and gave him a Fathers' Day card.
While Troy was in San Diego, he met with Hannah's psychotherapist, Jennifer Jenkins. Jenkins was helping Hannah cope with Cheri's death. Jenkins and Hannah also discussed Hannah's experience living with a mentally ill parent, her adjustment to her new school and the stress she felt with Troy.
The social worker offered to pay the airfare for Troy's next visit with Hannah, but he could not afford to return San Diego until August or September. The social worker offered to book him a hotel room, but Troy said he would be unable to visit again for a month or two. Troy began attending a parenting course on June 27, 2011, but his work required him to miss two classes, and he did not complete the course. On June 28, Hannah's counsel, joined by Troy, requested an evaluation of Troy's home pursuant to the Interstate Compact on the Placement of Children (ICPC) (Fam. Code, § 7900 et seq.). The court granted the request.
Jenkins postponed the start of conjoint therapy for Hannah and Troy while Hannah grieved Cheri's death. Hannah was handling the loss well and was happy in her foster home. She wanted to visit Troy, but live with her adult half-brother. The social worker suggested that Hannah allow her relationship with Troy to develop and Hannah assented. In July 2011, the social worker reported the half-brother said there was no room for Hannah in his home, but he might pursue placement when he moved to a larger home. In August, Troy announced he was suspending his ICPC home study because Hannah wished to remain in California.
Troy and Hannah participated in telephonic conjoint therapy sessions on August 28, September 8 and September 22, 2011. In the sessions, Hannah told Troy she did not want to live with him.
On September 20, 2011, Hannah told the social worker she was upset with Troy. Hannah believed Troy did not care about her because he was not showing an interest in her or making an effort to get to know her. He did not ask her many questions and gave brief responses to her questions. He still wanted her to move to Pennsylvania and was still seeking custody. Hannah said she did not want to live with Troy, but did want visits. She wanted him to come to California once more before she considered visiting him in Pennsylvania. Troy testified by stipulation at the six-month review hearing that he had not been able to "schedule another visit because of work conflict."
The six-month review hearing was held on September 26, 2011. The court reiterated its previous detriment finding and found by clear and convincing evidence it would be detrimental to Hannah to be placed with Troy. The court reasoned that Hannah's anxiety, post-traumatic stress disorder and insecure childhood made "consistency and continuity[] of supreme[] importan[ce]," and Troy had not demonstrated the necessary insight into her need for stability, consistency and security. The court continued Hannah's foster care placement.
The court did not orally state a statutory basis for the finding. The minute order cites section 361.2, subdivision (e).
DISCUSSION
At the six-month review hearing, Troy argued the evidence did not show Hannah's return to his custody would create a substantial risk of detriment to her well-being within the meaning of section 366.21, subdivision (e). Section 366.21, subdivision (e) states: "At the [six-month] review hearing . . . , the court shall order the return of the child to the physical custody of his or her parent . . . unless the court 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. The social worker shall have the burden of establishing that detriment."
Hannah's appellate counsel asserts "although Hannah cannot literally be returned to any parent's custody, it appears that section 366.21, subdivision (e) most closely fits this case, as it deals with [the child] placed in foster care whose parent is participating in reunification services with the goal of having the child placed in that parent's home." The Agency's appellate counsel takes a similar position, and Troy concedes section 366.21, subdivision (e) applies. We accept the concession and conclude substantial evidence (In re Alvin R. (2003) 108 Cal.App.4th 962, 974) supports the finding that placing Hannah with Troy in Pennsylvania would have created a substantial risk of detriment to her emotional well-being (In re Joseph B. (1996) 42 Cal.App.4th 890, 899).
Troy makes this concession in his reply brief. In his opening brief, he contended there was insufficient evidence to support the court's finding that placing Hannah with him would be detrimental to her within the meaning of section 361.2, subdivision (a). That subdivision states: "When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a [noncustodial] parent . . . who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." The juvenile court must make the section 361.2, subdivision (a) detriment finding by clear and convincing evidence. (In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570.)
Section 361.2, subdivision (a) did not apply at the sixmonth review hearing because the court did not order Hannah's removal at that hearing. (In re Zacharia D. (1993) 6 Cal.4th 435, 453454.) The court had ordered her removal at the dispositional hearing.
Hannah suffered a chaotic childhood in the care of her mentally unstable mother. Hannah finally found safety in foster care, but had to adjust to a new school. Troy reappeared in her life after being absent since her infancy, causing her further anxiety. Several months later, Hannah's mother died. Hannah handled these difficult circumstances with remarkable maturity. Understandably, she wished to become acquainted with Troy slowly, in a manner that would not add to her considerable stress, and her therapist agreed this was necessary. Hannah was not ready to live with Troy, but wanted to visit. She was not ready to go Pennsylvania, but wanted Troy to return to California. Troy believed "he ha[d] built a relationship with Hannah" and said if she were placed with him, he would "facilitate whatever services she required" and "make arrangements for her to visit in San Diego." His actions and Hannah's words showed otherwise. Troy had not returned to San Diego for a second visit or completed his parenting course. Hannah said she felt Troy did not care about her and was not making an effort to get to know her.
The juvenile court did not err by denying Troy's request for custody.
DISPOSITION
The order is affirmed.
___________________________
McDONALD, Acting P. J.
WE CONCUR:
___________________________
O'ROURKE, J.
___________________________
IRION, J.