Opinion
H045308
08-16-2018
In re I.R., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. D.G., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. JD024169)
In this juvenile dependency proceeding, the father appeals the juvenile court's order returning the child to the custody of her mother and stepfather. Because the placement decision was not an abuse of discretion, we will affirm.
I. BACKGROUND
A juvenile dependency petition regarding then five-year-old I.R. was filed in 2016. She (along with her half-sister) had been removed from her mother and stepfather's custody because of concerns about abuse and neglect. The family lived in a disheveled RV in Gilroy and there was evidence I.R. was physically abused and had witnessed violence between her mother and stepfather, both of whom were heavy methamphetamine users. I.R. had been removed from the mother's home two years earlier in Ohio for similar reasons. Authorities there also investigated the mother and stepfather when their two-week old baby died from accidental suffocation in 2013.
The juvenile court found I.R. to be a dependent of the court, removed her from her mother's custody, and placed her with her father (who lived in Ohio). I.R. did well there: she was enrolled in school where she showed normal academic and behavioral functioning, and she quickly bonded with her father despite limited previous interaction with him. The father seemed to be stabilizing his life after problems with alcoholism and a history of minor criminal convictions, but he relapsed and was arrested for being involved in a drunken fight at a bar.
The stepfather and father each asked the juvenile court for presumed parent status, and the court granted that status to both of them, giving I.R. a total of three parents under Family Code section 7612, subdivision (c) (allowing for recognition of three parents if not doing so would be detrimental to the child). The father appealed that decision (In re I.R., March 9, 2018, No. H044622), and we reversed the order based on insufficient evidence that not recognizing three parents would be detrimental to I.R.
That previous decision does not affect the resolution of this appeal. Our conclusion that there was insufficient evidence to support a three-parent finding did not constrain the juvenile court's discretion when determining where to place I.R. And a placement decision involves different considerations than deciding whether to recognize a third parent. --------
While that appeal was pending, reunification services were provided to the mother and stepfather, whose struggles continued. The stepfather was arrested for stealing from a Home Depot and the resulting criminal charges exposed him to a jail sentence up to one year. Both the mother and stepfather failed to complete some of the classes called for by their court-ordered case plan, including those intended to address domestic violence. A psychological evaluation of the mother was not favorable, reporting she failed to take responsibility for the reasons her children were removed, was manipulative, and likely to relapse into drugs and again place the children at risk. She did successfully complete a residential drug treatment program, however. And I.R.'s two half siblings—a younger sister and a recently born brother—had been returned to the mother's custody. The mother stayed at home to care for the children while the stepfather worked as a plumber to support the family.
Meanwhile in Ohio, I.R.'s father was maintaining his sobriety and successfully operating his own business, but there were signs he did not give I.R. adequate attention. Various people (sometimes the father's employees) would pick up I.R. from school and act as caregivers. She also had a number of unexcused absences from school. I.R. told a social worker she missed her mother, stepfather, and her siblings.
At a six-month review hearing, the juvenile court considered the issue of I.R.'s placement. The social worker recommended that I.R. be reunified with her mother with shared custody for the father. Because of the geographical distance, the father's recommended custody time was minimal—one weekend every two months, and some additional time during summer and holidays. The juvenile court ordered I.R. returned to her mother's custody in California, to remain under the jurisdiction of the court with continuing dependency supervision and services. In announcing that decision, the judge commented, "I think this is not necessarily an easy call, but I am persuaded that [I.R.] belongs in the [mother and stepfather's] home. I think [] having two parents with her, plus two siblings, the elimination of multiple caregivers and good resources, I think will give her the stability that she needs."
II. DISCUSSION
I.R.'s father contends the juvenile court erred by placing her with the mother and stepfather because they have not addressed the issues that led to the dependency, making placement with them detrimental to the child. The Santa Clara County Department of Family and Children's Services filed a respondent's brief stating that placement with the mother is appropriate under the circumstances and the order should be affirmed. Counsel for I.R. also filed a brief urging that the placement order is in I.R.'s best interests.
In deciding where a child will live during dependency proceedings, the juvenile court's paramount concern must be the best interests of the child. (In re Corey A. (1991) 227 Cal.App.3d 339, 346.) We review custody placement orders for abuse of discretion. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) That standard "measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria." (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831.) The juvenile court has " 'very extensive discretion' " to determine what constitutes the best interests of a child. (In re K.S. (2016) 244 Cal.App.4th 327, 340.) In the context of custody decisions, the test for abuse of discretion "is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child." (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The question for this court is not whether we agree with the juvenile court's ruling in the sense that it is the same decision we would have made. Rather, our role is limited to determining whether the juvenile court's decision is within the range of permissible outcomes.
The circumstances here illustrate the difficult choices that judges in dependency cases often must make. The juvenile court had to decide what best serves the child's interests—to live with her mother, stepfather, and siblings despite the history of placing her at risk and no guarantee the pattern would not repeat; or to live with her father even though that meant separation from her siblings and potential destabilization caused by having multiple caregivers. In the juvenile court's judgment, being with her mother, stepfather, and siblings is best for I.R. overall. That conclusion does not fall outside the boundaries of the broad discretion the law gives to the juvenile court to determine what constitutes the best interests of the child when making custody decisions.
The father argues that the mother and stepfather continue to present a significant threat to I.R.'s wellbeing. He stresses their failure to complete domestic violence treatment and the psychological evaluation that found the mother likely to relapse to drug use and place her children at risk. We acknowledge the father's legitimate concerns. The mother and stepfather have a poor parenting record. They have not completed all recommended programs. And the psychological evaluation of the mother gives one pause. But we are satisfied that the juvenile court considered those facts in making its decision. It weighed them against the need to maintain a bond between I.R. and her siblings and to provide her the stability that would come from eliminating multiple caregivers. It further considered that the mother had made substantial progress in addressing her drug addiction, and that continuing dependency jurisdiction will allow for court supervision and family maintenance services to mitigate any risk to I.R. The decision to place I.R. with her mother and stepfather after full consideration of the relevant issues was not an abuse of discretion.
III. DISPOSITION
The order is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Premo, J.