Opinion
H045337
12-20-2018
In re I.G., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. T.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD023784)
C.G. (mother) and T.G. (father) are the parents of six-year-old I.G. (born November 2011). In case No. H045169, this court affirmed the dispositional order removing I.G. from the home. Following a 60-day review hearing, the trial court continued I.G. in out-of- home placement. On appeal, father challenges the sufficiency of the evidence to support this order. We affirm.
This court has taken judicial notice of the record filed in case Nos. H044946 and H045169.
I. Factual and Procedural Background
In March 2016, the Santa Clara County Department of Family and Children's Services (Department) filed a petition alleging that I.G. came within the provisions of Welfare and Institutions Code section 300, subdivision (b) [failure to protect]. In June 2016, the petition was amended and alleged that I.G. was at risk of harm in the parents' care due to the mother's mental health, exposure to the parents' domestic violence, and the father's failure to protect I.G. In June 2016, the juvenile court found the allegations in the amended petition to be true, declared I.G. a dependent of the court, and ordered family maintenance services.
All further statutory references are to the Welfare and Institutions Code.
In June 2017, the Department filed a supplemental petition under section 387. It alleged that the previous disposition had not been effective in protecting I.G. due to the mother's severe untreated mental health issues and the parents' failure to comply with their case plan services. I.G. was taken into protective custody.
In August 2017, the juvenile court held a contested jurisdiction/disposition hearing on the section 387 petition. The juvenile court admitted, among other things, a psychiatric diagnostic evaluation and report dated August 5, 2017, by Dr. Masaru Fisher. According to Dr. Fisher, " 'when under severe stress [the mother] can become overwhelmed to the point that she cannot take care of herself or her daughter and needs to be in the hospital.' " He also concluded that " '[a]t present, due to her positive response to recent mental health treatment, there are no overt impairments in her ability to provide safe and appropriate parenting to her daughter, but this is tenuous.' " Dr. Fisher recommended monthly psychiatric appointments to evaluate her medications and therapy every two to four weeks.
Following argument, the juvenile court found that the allegations of the section 387 petition were true as alleged, and the previous disposition had not been effective in the protection or rehabilitation of I.G. I.G. remained in out-of-home placement. The juvenile court set a six-month review of family reunification under section 366.21, subdivision (e) as well as an interim review hearing in 60 days to review the parents' case plan progress. Counsel acknowledged that the parents would not have a right to a trial at the interim review hearing.
The report for the interim review hearing recommended that the parents continue to receive family reunification services and that all prior orders remain in effect. The social worker stated that the parents continued to resist case plan services. Though the parents had been referred to a parenting class four times, they had failed to complete a class. They were scheduled to begin a class on October 28, 2017. The social worker spoke with Dr. Fisher, who recommended that the mother find a separate therapist. However, the mother had not informed the social worker of her attempts to find another therapist. The social worker learned that the Department of Veteran Affairs referred the father to a private therapist, but the father did not provide documentation that he had found a therapist or was participating in counseling. The mother told the social worker that the parents were attending couples counseling, but failed to provide documentation. The father did not complete a 16-week parenting without violence class. The social worker did not receive confirmation that the father completed a psychiatric evaluation.
The social workers, who supervised the parents' visits with I.G., reported that the parents were "oppositional with visitation rules and confrontational and combative with the social workers when redirected and reminded of the rules."
The addendum report included Dr. Fisher's most recent mental health assessment of the mother based on office visits in August and September 2017. He stated that his conclusions were unchanged from his prior assessment, which was admitted at the section 387 hearing.
The social worker attached copies of the parents' e-mail exchanges with the Department to the interim review and addendum reports. According to the social worker, the parents' "tactics through false allegations of this county worker and to discredit all parties involved by threatening to file law suits and file claims for the purpose of professionals losing their jobs further has nothing to do with them completing their case plan or improving their parenting skills. In this worker's opinion, it shows that the parents may not be focused on getting [I.G.] returned to them but they are more interested in creating a cloud of confusion and fear for those involved in their case."
On October 10, 2017, the juvenile court held the interim review hearing. The father asserted that he was cooperating with the Department and summarized his complaints against the Department. The trial court stated that the matter had not been set for a contested hearing. The mother's counsel then requested that the case be transferred to Marin County where the parents were currently living. The father joined in the request. The minor's counsel opposed the request: "I think that wherever [the parents] go, they will cause the exact same amount of trouble that they have caused in this county. And I don't really think it would be fair to Marin County to hoist this family upon them, especially because we have collected the amount of information that we have at this point . . . . [¶] I think that it's being handled appropriately in this county, and . . . I think the minor's placement and her school and the services that she's receiving here in this county are in the best interest of the minor." The father stated that he would file a petition for modification under section 388. At the conclusion of the hearing, the juvenile court ordered all previous orders to remain in effect.
II. Discussion
Section 386 provides: "No order changing, modifying, or setting aside a previous order of the juvenile court shall be made either in chambers, or otherwise, unless prior notice of the application therefor has been given by the judge or the clerk of the court to the social worker and to the child's counsel of record, or, if there is no counsel of record, to the child and his or her parent or guardian." Thus, absent a section 388 petition of changed circumstances, the juvenile court is not authorized to change or modify its previous orders. (See In re Natasha A. (1996) 42 Cal.App.4th 28, 34-35.) In the present case, the case had been set for an interim review hearing at which the parties had previously agreed that there would be no right to a trial. Moreover, since no section 388 petition had been filed, there was no notice of an intent to change the prior orders. Under these circumstances, the juvenile court would have erred if it had modified its previous order without notice.
The father argues, however, that there was no evidence to support the juvenile court's prior order and the interim review order continuing I.G. in out-of-home placement. Even assuming that this court must review the record for substantial evidence, we find no error.
First, in case No. H045169, this court held that there was substantial evidence to support the juvenile court's findings that the allegations in the section 387 petition were true and that the prior disposition had not been effective in protecting I.G. This court affirmed the dispositional order. "Where questions presented on a subsequent appeal were necessarily involved in a former appeal, and the conclusion arrived at on the former appeal could not have been reached without expressly or impliedly deciding the question subsequently presented, the decision on the former appeal is the law of the case and rules throughout all subsequent stages of the action." (Stock v. Meek (1952) 114 Cal.App.2d 584, 586.) Thus, to the extent that the father challenges the sufficiency of the evidence to support the allegations in the section 387 petition, our October 19, 2018 opinion in case No. H045169 constitutes law of the case.
The father also contends that the "original causes of the dependency had been surmounted by the parents, and that continuing out-of-home placement was not necessary to protect" I.G. He relies on primarily on Dr. Fisher's most recent mental health assessment written after the mother's appointments with him on August 29 and September 12, 2017.
However, Dr. Fisher's conclusions in his most recent assessment remained unchanged from his previous assessment. He concluded that " 'when under severe stress' " the mother could not care for herself or I.G. He also concluded that there were currently no impairments to the mother's ability to care for I.G., but " 'this is tenuous.' " In addition, the parents had made little, if any, progress on their case plan services since the section 387 hearing. They failed to complete a parenting class, the mother failed to provide information about her attempts to find another therapist, the father did not provide documentation that he had found a therapist or was participating in counseling, the parents did not provide documentation that they were attending couples counseling, the father did not complete a parenting without violence class, and the social worker did not receive documentation that the father completed a psychiatric evaluation. Thus, there is no merit to the father's contentions.
In sum, the juvenile court did not err at the 60-day review hearing in ruling that its prior orders were to remain in effect.
III. Disposition
The order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Bamattre-Manoukian, Acting P. J. /s/_________
Danner, J.