Opinion
A130424
09-13-2011
In re ELIJAH H. and E.N., Persons Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH AND SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. CASEY H., Defendant and Appellant, D.R., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. Nos. J40406, J40407)
Casey H. is the mother of two sons, Elijah H. and E.N. She appeals from the dispositional order of the Solano County Juvenile Court adjudicating the sons dependents of that court, but does not challenge the sufficiency of the evidence to support the court's declaration of dependency over her two sons. The court ruled that E.N. could be placed with her while she was attempting to rehabilitate herself from substance abuse while she was in a residential program that allowed parents to have their children with them while being treated, but that Elijah H. would be placed with his natural father. Although appellant frames several arguments, they are at root but one, namely that the court abused its discretion in not directing that both her sons be placed with her. While appointed counsel does an able job in presenting this position, we cannot conclude that the juvenile court abused its discretion in ordering that Elijah H. be placed in the custody of his natural father. We therefore will affirm the dispositional order.
BACKGROUND
Appellant concedes in her opening brief that "At the time this case arrived in the juvenile court, [she] had a history of drug abuse, contacts with law enforcement and social services and domestic violence." In light of this concession, and the limited nature of her arguments presented on this appeal, the following narrative will be restricted to matters germane to those arguments.
The minors were ordered detained on October 5, 2010. One week later, at an unreported jurisdictional hearing, the court sustained allegations in a petition filed by the Solano County Health and Social Services Department (Department) that appellant had a history substance abuse, and of domestic violence with the fathers of both the minors, and that these circumstances left the minors at substantial risk of harm and neglect. The minors were placed in the care of appellant's relatives.
The minutes for this hearing recite that appellant submitted the allegations for adjudication on the basis of the Agency's report. So does the waiver form appellant executed. However, the formal "Findings And Orders After Jurisdictional Hearing" recite that appellant admitted the allegations. This discrepancy may be puzzling, but it is without significance to this appeal.
Appellant was in custody at the time of the jurisdictional hearing, but she had been released by the time the dispositional hearing was held on November 17, 2010.
The Department reported that appellant was, however, still facing "felony child endangerment charges."
One thing mentioned by the Department's social worker in the disposition report prepared for that hearing concerned Elijah's paternity. The social worker reported that appellant told her "Mr. [R.] was present at the birth, is named on the birth certificate, signed a declaration of paternity and has held the minor out as his own since birth. When asked, she indicated she has no doubt Mr. [R.] is the father of Elijah." The social worker confirmed "the same information" from Mr. [R.]. "In addition, he indicated he has made financial contributions to support the minor over the last four years. . . . Mr. [R.] stated he would like the Court to order paternity testing and . . . wished the Court find him to be the presumed father." The Department supported both of these requests, recommending that "the Court confirm Mr. [R.] as the presumed father of Elijah."
Like appellant, Mr. R. has a drug-related criminal history: Eight arrests, but none since 2003 "and he is not currently on probation or parole." Four months before the dependency was commenced, appellant secured a restraining order against Mr. [R.], which he violated the day it was issued. The order was still in effect.
The social worker further reported that "Upon the filing of the [dependency] petition, Mr. [R.]'s whereabouts were unknown. Mr. [R.]'s whereabouts remained unknown until 10/15/10 when he contacted the undersigned . . . Mr. [R.] is not currently employed and is receiving unemployment benefits while he searches for work. Mr. [R.] currently resides in Vallejo, with a family friend. He rents two rooms in the four bedroom house. His monthly rent includes cable, gas and electricity, as well as some household items. Mr. [R.] is responsible for the purchase and preparation of his own food."
"Mr. [R.] communicates a commitment to being a stable parent to his son and wants to participate in this dependency" and "also expressed an ability and willingness to assure the sibling and parent/child relationship remains intact should his son be placed in his care." But appellant did not want Elijah to be placed with Mr. [R.] because she doubted "his ability to be consistent." She wanted both her sons to be placed with her while she "is participating in the Center Point residential treatment program," or, failing that, with her mother.
The social worker reported that the Department "has been cautious in considering the release of Elijah to the care of his father, given information received about his criminal past, mental health and anger management issues. . . . There are . . . significant risks associated with considering his father's home an immediate placement option for Elijah." On the other hand, "Mr. [R.] has kept all appointments with the undersigned, has followed all recommendations made by the Department and has not presented any barriers to placement of Elijah in his home." Moreover, "[t]here are currently no health/safety issues regarding placement of his son in his care."
Regarding appellant, the social worker reported a conversation she had with her in which appellant conceded "she has a lot of work to do, in order to establish a base of trust in her relationship with . . . Elijah." Appellant has three prior experiences with residential treatment programs, but was optimistic that her latest would be successful.
In a conversation with the social worker, appellant's sister "indicated her concern about Elijah and his mother's relationship and indicated she was hopeful her sister can repair her relationship with her son."
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Concerning that program, the social worker advised the court that appellant "is on a 30-day blackout period at Center Point Treatment Program through 11/01/10, which includes fourteen days without parent/child visits. At this time, it is not possible to place the children in their mother's care due to the current circumstances. Not only is it not possible, the minors would be at high risk of abuse/neglect if returned to their mother's physical custody at this time. When the program recommends it, the children could be returned to the mother while she remains in the treatment program. The active participation in the residential setting and the supervision by the treatment staff would reduce the risk and safety factors."
The Department does not appear to have taken a position regarding placement of the children. This neutrality appears to have been the result of substantial doubts as to all of the alternatives. The doubts about appellant and Mr. R. have already been noted. Even appellant's mother was not exempt: the social worker expressed "significant concerns about the family's co-dependent patterns that are currently in place, given these patterns have allowed [appellant] to continue to abuse substances over the years, and also expose her young children to risky and traumatizing situations."
Two witnesses testified at the dispositional hearing: the first was social worker Wendy Smith, for the Department, and Gloria Sverchek, the "family advocate" at appellant's treatment program, for appellant.
Ms. Smith testified that now that appellant had entered the treatment program, the Department's recommendation was that appellant be provided reunification services and that she, Ms. Smith, be given the discretion to place the children with either parent. Although the program allows children to be with parents after 45 days after starting the program, Ms. Smith would prefer to hold off on deciding placement for 60 days. One reason for this was appellant's history with prior treatment programs, specifically, completing three of them but still not breaking her addiction.
From speaking to several people at the program, Ms. Smith understood that appellant was "on track in her recovery process," and that appellant could continue with the program if the children were with her. The program has "parenting skills programs," a "child bonding component," an "on site developmental services program, as well as . . . a developmental specialist" that would benefit appellant and both children. The program also has educational programs for children, who would be supervised while the parent "attends programming." It also has apartments where appellant and the minors could live. Appellant also has strong family support.
Concerning Mr. R., Ms. Smith further testified that he has lived at the same address for two years, visited Elijah, and all the visits had gone well. She inspected his home and found no safety concerns. Mr. R. indicated a willingness to participate in Elijah's developmental assessment and parenting classes.
Ms. Sverchek, who was currently appellant's counselor, testified that the Center Point program appellant is in is a "perinatal program" that is specifically designed to help mothers reunite with their children. Ms. Sverchek's opinion was that appellant is very motivated to get "clean" and reunify with her children. Appellant was about to complete the "black-out" part of the program and move into the five-month "support" part where she could have her children with and take advantage of the numerous classes that would facilitate reunion. Ms. Sverchek testified that she was in favor of appellant's children being placed with her, and did not believe placement would hinder her progress.
In argument, the Department continued to recommend that it be given the discretion to decide the appropriate time for placing both children with appellant. Asked by the court about the statutory requirement to place Elijah with Mr. R. "unless I find detriment to him," counsel replied that "it would be detrimental to place with him immediately." Counsel also noted that Mr. R. "has admitted that he has somewhat of an anger management problem, and if you're dealing with a four-year-old child that almost five but he's never parented before, I think while he has had positive . . . short visits, I think it would be wise to provide services and work with them and ensure that we move toward the possibility of placement and not set him up for failure."
Counsel for Elijah generally supported the Department's position that both children should in time be placed with appellant, and that it would be detrimental to Elijah to place him with Mr. R. Appellant's counsel also concurred with the Agency's position, except that she argued for immediate placement with appellant.
Mr. R.'s counsel argued that the Department had "met their burden in establishing that removal of Elijah from his mother is appropriate," and "[o]nce the court makes the determination . . . a removal from the parent is appropriate, if there is s non-custodial parent coming forward requesting placement, as my client Mr. [R.] is, Welfare and Institutions Code section 361.2 requires that the court place the child with the non-custodial parent absent a finding of detriment to the child." Counsel then argued that the evidence did not support the court finding, by clear and convincing evidence, that placing Elijah with his father would be detrimental to Elijah. Therefore, "I would ask the court to order that Elijah be placed with his father immediately."
After taking a recess to "look at things," the court ruled as follows:
"[F]irst, just let me say that this was a very hard decision. In many cases, I think counsel will understand, we don't have enough family or parents that show any interest in the children to, you know, have any kind of meaningful hearing in terms of where the children are going to be. They're removed, they're in foster care and they just stay in foster care until hopefully we can achieve some kind of permanence.
"This case is fairly unusual in that there are alternatives and there are parents making progress in treatment, and so there's like too many options with respect to these particular children. I am going to find that the Department has met its burden by clear and convincing evidence under 361(c). The main factor that I'm considering is the number of times that [appellant] has been in treatment before. I don't think that the time that she's been in treatment, even though she seems to be doing very well now, is enough to overcome those prior failures.
"With respect to [E.N.], I will give the Department the discretion to place with her. I think that's something that they can exercise well in relationship to, you know, in consultation with the program. But with respect to Elijah, the analysis under 361.2, I don't think the [Agency] has met its burden of proof. It requires clear and convincing evidence that it's detrimental to Elijah to be placed with his father and I can't make that finding.
"So, I am going to order that Elijah be placed with his father. I'm going to order reunification services to the mother. That may not be where he stays, but at least for right now he's going to be placed with his father."
The court's reasoning was augmented in an attachment to the formal "Findings And Orders After Dispositional Hearing." The attachment states:
"1. [Mr. R.] is the presumed father of Elijah [H.]
"2. CWS met its burden of proof required by WIC § 361(c)(1) regarding removal of this minor from the custody of his mother by clear and convincing evidence. [Appellant] is doing very well in treatment. However, she has done well in treatment three times before and has relapsed into addiction. There was no evidence adduced that this treatment will necessarily produce a better result than previous treatments. As a smaller point, the court notes that there is some indication that a member of her family has enabled [appellant] to use drugs. Although not sufficient evidence by itself, it contributes to the court's findings. The court does not find credible any testimony to the effect that the court can prevent the mother from taking the child if she leaves the program without permission.
"3. CWS has not met its burden of proof regarding detriment pursuant to WIC § 361.2 by clear and convincing evidence. The self-report by Mr. [R.] of having an anger problem even when combined with the concerns raised by [appellant] and her family do not show detriment to the minor by clear and convincing evidence. Similarly, the disclosure of marijuana use and positive test for marijuana do not show detriment by clear and convincing evidence. Finally, although there has not been recent extended contact between Mr. [R.] and the minor, the minor appears well and healthy and able to bond with his father. They have had two visits, which have gone well. CWS supervision and interventions can well address any issues regarding anger (which was not made a part of Mr. [R.]'s case plan), marijuana use and lack of recent contact.
"4. Elijah [H.] and his younger brother [were] not a sibling group at removal. They did not reside together prior to entry into foster care. No evidence was adduced that the time they have been placed together has created a sibling group.
"5. Although a case plan for Mr. [R.] has been developed, it was designed to address concerns regarding reunification and visitation. The court directs the Department to reconsider Mr. [R.]'s case plan. If there are issues that need to be addressed, counsel can put the matter back on calendar."
DISCUSSION
In her brief, appellant frames two claims of error. First, she asserts that "No substantial evidence supported removing the minors from [her] care because there was an excellent and reasonable alternative to removal." Second, "[i]t was detrimental to Elijah to place him with his biological father, . . . and the Juvenile Court abused its discretion in so doing." Although counsel for appellant identifies two issues, there is a large measure of overlap between them. Both the issue of whether Elijah was properly removed from appellant's custody, and the issue of whether Elijah was properly placed with his father, ultimately must stand or fall on the court's view of appellant's prior efforts at overcoming her substance abuse problem. Moreover, if that finding is sustained, it will figure prominently in analyzing whether it was not detrimental to Elijah to place him in his father's custody.
Counsel recognizes that "on appeal from a judgment required to be based upon clear and convincing evidence, 'the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong.' " (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881, citing what is now 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 371, p. 428.)
And although counsel obviously has a full mastery of the record, his arguments cannot amount to "an attempt to re-argue on appeal those factual issues decided adversely to [appellant] at the trial level." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.) Not only is that reweighing of the evidence foreclosed to us, we must also respect the credibility assessments made by the juvenile court. (In re S.C. (2006) 138 Cal.App.4th 396, 415; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Counsel notes the numerous features of appellant's treatment program that are intended and tailored to help her reunite with her children. All this may be conceded, and accepted at face value. Nevertheless, that value is fatally undermined in two respects. First, as noted by the juvenile court, there is the matter of appellant's history with treatment programs. Appellant condemns as "pure speculation" the idea that this program would not succeed. But the juvenile court was within its authority as the trier of fact to make an evaluation of the likelihood of appellant's anticipated success in the light of her history of disappointing such hopes. (See In re William B. (2008) 163 Cal.App.4th 1220, 1228, 1230; In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Although appellant stresses that "the juvenile court's order went against the recommendation of the minor's attorney and the trained supervising social worker," she apparently forgets that at the hearing she asked for immediate placement, which also "went against" the conclusion of Ms. Smith that the Department should have the discretion if and when placement with appellant was appropriate.
Appellant insists that whether family members had "enabled [her] drug use in the past" was "an irrelevancy to the question of whether Center Point provided a 'reasonable alternative' to removal as maternal relatives played no part in [appellant's] placement there." It is not irrelevant if it is remembered that the court was concerned about appellant's ability to "leave[] the program without permission." Assuming such unauthorized departure, it certainly was not irrelevant for the court to be concerned about appellant connecting with family members and being "enabled" once again.
Appellant next insists that 'the removal of [appellant's] children from [her] care resulted in them being separated, after having lived together for several months at the paternal grandfather's home, and having regular association with each other prior to that." Although appellant condemns this as "incredible," she does not challenge the juvenile court's finding that children were "not a sibling group at [the time of] removal" or at the time the dispositional hearing was conducted. Moreover, appellant had only legal custody at the time of the hearing. Actual custody had been with the Department since the children were detained. The whole point is that appellant was trying to get actual custody, so the children had already had a substantial period of separation from her. And nothing in the juvenile court's decision prevents the children having "regular association with each other" after the hearing.
In light of the foregoing, appellant has failed to establish the absence of substantial evidence supporting the juvenile court's finding that there was a substantial danger that returning Elijah to appellant's custody would be detrimental to his "physical health, safety, protection, . . . physical or emotional well-being." (§ 361, subd. (c)(1).)
But if it was not error to forego placing Elijah with appellant, was it error to place him with his father? Appellant contends not only was it error, it was "gross error" because Mr. R. "had unresolved anger, mental health, drug abuse, and employment issues, and his living conditions and relationships had not been properly assessed."
She advances ten particulars:
First, Mr. R. was "an offending parent," by which she means that he was the subject of one of the allegations sustained at the jurisdictional hearing, specifically, that he had physically abused appellant. This is an overly generous reading of the allegation, which was: "The mother, Casey H., has or has had a history of domestic violence with the fathers of her two children: Eric. N., the father of E.N., and [Mr. R.], the father of Elijah R. This history includes, but is not limited to, Mr. N. hitting Ms. H. about the head and face, causing severe bruising. . . ." This is hardly an unambiguous determination that Mr. R. physically abused appellant—something he denied.
In any event, section 361.2, subdivision (a) specifies in pertinent part: "When a court orders removal of a child . . . , the court shall first determine whether there is a parent of the child with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, 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 predicate for appellant's argument finds no support in this language: "[T]he phrase 'nonoffending parent' does not appear in section 361.2. . . . [S]ection 361.2 applies to noncustodial parent without regard to that parent's status as an offending or nonoffending parent." (In re V.F. (2007) 157 Cal.App.4th 962, 970.)
Second, Mr. R. "had a current marijuana abuse problem. Here too, appellant overreaches. As the Department states in its brief, on this point "substantial evidence supports the juvenile court's decision to place with [Mr. R.] Appellant's observation that 'record does not show either the extent of [Mr. R.'s] drug use or the length of the problem' actually weighs in favor of the court's findings. [Mr. R.] had not faced drug charges for over seven years. He freely admitted smoking marijuana again when he lost his job recently, but promised to stop when Elijah was placed in his care."
Third, "the court's removal order violated the Legislature's intent to keep siblings together." As previously noted, the court found that Elijah and his brother were not "a sibling group," a finding appellant does not challenge.
Fourth, Mr. R. "failed to visit Elijah for over a year before the juvenile court's involvement." Yet, while insisting that Mr. R. was subject to a restraining order (see appellant's point 7, post), it seems anomalous to fault him for not violating that order in order to visit his son. The picture appellant wishes to paint of Mr. R. as a disinterested parent is hard to square with his continuing to make payments for Elijah's support for four years, and the fact that it was appellant's family that alerted Mr. R. to the dependency proceeding, at which point he promptly got in touch with the Department.
Fifth, "Elijah was afraid of [Mr. R.] due to many scenes of domestic abuse the child had witnessed." Ms. Smith reported no such fear. On the contrary, Elijah seemed pleased when his father visited. Ms. Smith testified that the claims of domestic violence came only from appellant for her family and could not be corroborated from official sources.
Sixth, "the supervising social worker did not recommend placement of Elijah with [Mr. R.]." But appellant has already noted that Ms. Smith's recommendation was in no way binding on the court.
Seventh, "protective orders were in place to prevent [Mr. R.] from stalking [appellant]." "Stalking" is appellant's characterization, one that was not used by Ms. Smith or accepted by a court mediator who examined the matter.
Eighth, "[Mr. R.] rented rooms in a house from a housemate whose identity and appropriateness to be around children was unascertained." Ms. Smith certainly did not think this was an adverse or even relevant consideration.
Ninth, Mr. R. "was involved in a relationship with a woman and her child." Again, Ms. Smith did not consider this sufficiently important to mention in her reports. Indeed, it seems irrelevant in light of her report that she conducted an examination of Mr. R.'s home and found no cause for concern about Elijah's safety if placed with his father. The matter of Mr. R's girlfriend elicited no concern by Ms. Smith.
Tenth, Elijah "wished to be with his mother, not [Mr. R.]" But there was also evidence that Elijah enjoyed being with his father.
Section 361.2 commands that a noncustodial parent—which Mr. R. undoubtedly is—shall be given custody unless it would be detrimental to child. Mr. R. provided many examples of an abiding concern for Elijah. If he has failings, which he seems more than willing to admit, the court's decision leaves scope for these issues to be addressed in the revised case plan the Department was ordered to reconsider, and, if necessary, bring to the court's attention. The issue was one where there were points on each side. The juvenile court obviously did not make its decision lightly. Having examined the record, we cannot condemn that decision as an abuse of discretion in following the statutory command.
DISPOSITION
The dispositional order is affirmed.
Richman, J.
We concur:
Haerle, Acting P.J.
Lambden, J.