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Stanislaus Cnty. Cmty. Servs. Agency v. J.W. (In re B.W.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 22, 2020
No. F079293 (Cal. Ct. App. Jan. 22, 2020)

Opinion

F079293

01-22-2020

In re B.W., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. J.W., Defendant and Appellant.

Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JVDP19000049)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Ruben A. Villalobos, Judge. Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.

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J.W. (father) appeals the juvenile court's dispositional order removing his now six-year-old son, B.W., from his custody. Father contends the order temporarily removing his son from his physical custody was not supported by evidence the removal was necessary to avoid a substantial danger to his son's physical health or emotional well-being. (Welf. & Inst. Code, § 361, subd. (c)(1).) He also contends the juvenile court failed to consider whether there were reasonable means by which his son's physical health could be protected absent removal. Finding no merit to father's arguments, we affirm.

Undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

At the outset of this case, two of father's three children lived with him—his 10-year-old daughter, K.W. (daughter), and B.W. (son), who was five. Father's other son, six-year-old G.W., lived with his paternal aunt and uncle under a guardianship granted them in April 2013 after G.W. tested positive for methadone when he was a baby and the children's mother, K.D. (mother) was arrested and charged with child endangerment. Mother had been out of the children's lives for some time. Daughter had Mucopolysaccharidosis type III (MPS III), also known as Sanfilippo Syndrome, a progressive disorder caused by a genetic mutation that is generally fatal before early adulthood. The disorder caused daughter to be severely developmentally delayed, nonverbal, g-tube dependent, and confined to a wheelchair. Daughter had been living with paternal grandmother since at least 2012, but father took over her care after paternal grandmother passed away in March 2018.

Mother was not found during the course of these proceedings, despite reasonable efforts to locate her. Accordingly, she was denied reunification services. She is not a party to this appeal.

The Agency Investigates a Referral Regarding Daughter

On January 25, 2019, the Stanislaus County Community Services Agency (Agency) received a referral from staff at daughter's school, who reported daughter was very ill—she was congested, had difficulty breathing and was coughing up a large amount of mucus—and they could not reach either father or his girlfriend, T.W. (girlfriend). In addition, daughter had a large, reddish, rug burn-like scrape on her chin and jawline, and a small circular dime-shape scrape behind her left ear. Daughter's g-tube site was very dirty, with formula stuck to her skin.

Subsequent references to dates are to dates in 2019, unless otherwise stated.

A social worker and public health nurse visited the school that day and spoke with the teacher and school nurse. The teacher reported daughter came to school with "'tight'" diapers that left marks on her waistline. When she attempted to address these concerns with father, he became defensive and began yelling. She also attempted to contact girlfriend, but the call was answered and disconnected immediately. The teacher believed father was struggling to care for daughter following paternal grandmother's death. The teacher was informed the family's neighbor was caring for daughter and had a tough time changing her correctly. The school nurse said daughter was coming to school in saturated diapers, and father said the neighbor who cared for her in the morning was uncomfortable changing them. The school nurse also said it had been difficult to get in contact with the family.

The social worker and public health nurse went to father's home, where they spoke with daughter's In-Home Supportive Services (IHSS) worker James O., who was the family's next door neighbor. James believed the mark on daughter's chin came from her daycare or the mask she wore to receive albuterol treatment. James said father worked in San Francisco and got home at 5:00 p.m., when he picked up daughter from her daycare and brought her home. Girlfriend also worked during the day. James called girlfriend, who spoke to the social worker, and said daughter's back muscles were giving out, and she would bump her chin on the couch and wheelchair.

A phone call to Valley Children's Hospital revealed daughter had missed six medical appointments over the past seven months: one in June 2018 with a gastroenterologist; one in July 2018 with a surgeon; two in August 2018 with a cardiologist and gastroenterologist; one in September 2018 with genetics; and one in November 2018 with a surgeon. The parents were advised to make up the appointments, but had not done so.

On January 28, a social worker spoke with father at his home. Father claimed the school was "'picking on him because he is a single father,'" and the school nurse had "'something against him'" because she called him numerous times about the marks on daughter's face. Father did not notice the mark when he left for work at 3:00 a.m., but the caretaker noticed it when daughter was given her breathing treatment. When the social worker expressed concern about the inconsistent explanations regarding the mark, father began to raise his voice and stated he was sick of being harassed by child protective services (CPS) and the school. The social worker discussed possible family maintenance services, but father said daughter was well taken care of and he had all the help he needed. Daughter was going to daycare on weekdays and a caretaker watched her every day. Father said he worked very closely with Valley Mountain Regional Center (VMRC) and received various services from them, including a referral to the daycare center.

When the social worker asked father the last time daughter attended a medical appointment, father said girlfriend would have more information about that. While girlfriend was not son's biological mother, he considered her his son's mother because she raised him since he was 11 months old. When the social worker told father daughter had missed many medical appointments, father responded he was unaware of where to take her because paternal grandmother had cared for her. Father became tearful and said it had been overwhelming to care for daughter since her health declined. He thought about placing her in a home, but would feel guilty if she passed away there.

Father admitted to smoking marijuana recreationally, and said he had a valid medical cannabis card, which he could not locate, but denied any other drug use. Father admitted he had a criminal history—he was arrested for domestic violence, marijuana possession, and terrorist threats. The social worker encouraged father to contact the medical providers and set up appointments before daughter's health worsened. Father responded, "'everyone needs to get off [my] back and stop nit picking about every little thing.'" The social worker left after she began to feel uncomfortable and unsafe, as father started yelling and stood up with his chest puffed out.

On February 1, father texted the social worker to inquire about the steps for placing daughter in a home near Modesto. The social worker advised father to let the assigned VMRC worker know he was flexible with placing daughter at the nearest facility. Father responded that he had already left a message.

The social worker spoke with father on February 5 and asked him how he was doing contacting VMRC. Father began yelling and said he left a voicemail for the VMRC worker, but she had not returned his call. Father continued to scream over the telephone and did not allow the social worker to speak. Father said he did not know why CPS was involved in his life, he took good care of daughter, and CPS was trying to ruin his life because he was a single father. The social worker said the Agency was trying to provide services for daughter so she could thrive and father could receive help. Father told the social worker he was going to disconnect the line and did not want to speak with her again.

A couple minutes later, a supervisor in the Agency's emergency response unit called father and explained the Agency's concerns. Father said he would voluntarily place daughter in a facility as it was more difficult to care for her as her medical condition worsened. The supervisor said the social worker would contact him to check on his progress with finding a facility, and father agreed to be calm and compliant with her. Later that day, father texted the social worker and said he was "'done being harassed by you guys'" and while he was going to place daughter in a care facility, he was going to seek legal counsel and "'call HIPAA'" as daughter was far from neglected.

The social worker spoke with daughter's VMRC social worker, who said VMRC offered father various services, but he refused to accept any except the daycare center referral. Father did not want respite care because he did not want anyone in and out of his household, and instead said he would hire a caretaker through IHSS. The VMRC worker was concerned about daughter's safety, as the worker had received phone calls from her school and daycare center. She had spoken with father about voluntary placement options and submitted a placement referral on his behalf, but it would take some time to find one that would accommodate daughter's 24-hour needs.

On February 8, an Agency meeting was held and levels of intervention were discussed. It was recommended that the social worker proceed with a warrant to place daughter and son in protective custody, but she first needed to find an appropriate placement for daughter. VMRC found two potential placements in Lodi and Stockton. The social worker called father on February 11 and told him of the possible placements. Father was thankful daughter could be placed close to home.

On February 25, the Agency received another referral regarding daughter, which reported her health had declined significantly since she went to live with father. Daughter often appeared drowsy, she would sleep a lot at school, and she had breathing issues. Daughter showed up to school with patches of hair missing, a chipped tooth, and continuous bruises. Father had been asked to take daughter to the doctor and bring a doctor's note, but that had not happened. Earlier in the week, daughter needed emergency surgery because she pulled out her g-tube. Her chin injury was barely healing, and she showed up to school with a red and inflamed nose that looked like a rash. Father did not know what happened to her nose and had not bothered taking her to the doctor.

The social worker and public health nurse interviewed son at his school. Son told them "'Papa'" drops him off and picks him up at school, and he eats at papa's house and "'sometimes sleeps [there] three or four nights.'" Son said he was scared, as "'someone called the cops on my dad.'" Son saw father hit his "mom" on the head, which he demonstrated was with a closed fist to the forehead. His "mother" began to cry, told him to come over to her and said they were going to live in a different house. Son said his "'mother cried a lot because dad argues and say[s] bad words.'" Son changed the subject and said he saw someone with a knife and he was scared the person would try to kill him and his brother. The police came to the home and arrested the person, who was in jail. Son said he did not go to the doctor when he was sick.

B.W. called father's girlfriend "'mom'" or "'mother.'"

The social worker spoke with paternal great-aunt, who was G.W.'s guardian. Paternal great-aunt was concerned about father's "'aggressive behaviors'" and she suspected he was "'smoking marijuana around his children.'" She filed for a restraining order against father in 2012 after he attempted to "'hit'" her.

The Agency Places Son in Protective Custody

On the morning of February 27, the Agency was notified that daughter had passed away. Agency staff met and decided to take son into protective custody exigently. The social worker and public health nurse went to father's home and saw three police cars and a coroner's van in front. After father carried daughter out of the home and placed her in the coroner's van, he turned to the Agency personnel and began yelling and cussing at them, telling them to get "'out of here.'" Paternal grandfather approached them and demanded they leave. The social worker explained they were sorry for the family's loss and wanted to offer counseling and grief services, and the Agency was concerned for son's safety. Paternal grandfather responded that could be dealt with later, but the social worker stated it had to be dealt with that day and she would have to assess the home. Paternal grandfather said that was not going to happen that day, demanded they leave, and walked away.

A police sergeant escorted the social worker and nurse down the block and told them he did not want a riot to occur. When the social worker explained the Agency's concerns for son's safety, the sergeant said daughter's death was not a homicide, but rather was due to her medical condition, although he was not a medical doctor, and the home did not appear hazardous. A police detective also told the Agency personnel this was not a homicide and there were no visible marks that would indicate child abuse. Father told the detective he gave daughter her medication when he placed her in bed at 7:30 p.m. on February 26, and when he attempted to wake her for school in the morning, she was unresponsive. When the social worker explained the Agency's concern about daughter's missed appointments and lack of medical care, the detective said this was the Agency's case and recommended they speak with paternal grandfather, as he was more "'level headed and calm.'" The social worker asked the detective to speak with him and tell him the Agency was trying to prevent taking son into protective custody and wanted to assess him as a protective caregiver.

Paternal grandfather came over with the sergeant and detective, and began berating the social worker, saying there was no reason to take son from father, as he was a great father and son was well cared for. The social worker explained that son disclosed domestic violence and said someone was going to cut him with a knife. Paternal grandfather confirmed son's uncle had taken out a knife in front of the children and attempted to stab people in front of father's home, but there were no current safety concerns as the uncle was incarcerated. Paternal grandfather was open to the safety plan, but would need to discuss it with father.

A little later, the social worker and public health nurse spoke with paternal grandfather in the county vehicle. The social worker explained the safety plan would be for son to reside at paternal grandfather's house while the Agency conducted an investigation. Paternal grandfather said father was surprised about the allegations of domestic violence and that son feared for his life. Father approached the county vehicle and stated he had the right to know "'what the fuck is going on.'" When the social worker attempted to explain the safety plan to father, father began to berate the social worker, using a racial slur and telling her to go to hell. Father took an aggressive stance with his legs spread apart and chest puffed up, and pointed his finger at the social worker, yelling and screaming at the top of his lungs. Paternal grandfather demanded father stop talking to the social worker and "forced him to sign the safety plan." After father walked away from the vehicle, paternal grandfather apologized for father's "'aggressive'" behavior.

Despite the signed safety plan, the Agency decided to take son into protective custody due to father's behavior, that he felt "forced" to sign the safety plan, and the Agency's "current safety concerns." The social worker and public health nurse picked up son at his school and transported him to the Agency. During the drive, son told them girlfriend was not at home last night because "'his dad was fighting with his mom.'" When the nurse asked if they fought with their words or hands, son responded they use their hands, they "'fight hard,'" and father is loud. Son also stated he wanted to beat up his dad because he does not want his dad to fight with girlfriend, who "'lives somewhere else right now and [he] does not know where.'"

Father and girlfriend came to the Agency for an interview. Father said he was "'coached'" and "'forced'" to tell VMRC he wanted his daughter in a home. The social worker explained there were concerns he had neglected daughter's medical care. Father explained multiple times how he was in the NICU for his children, he raised them alone, and he was unaware of the medical appointments, as his mother was dying from brain cancer. He said VMRC was not concerned with his care, and he had to have his daughter in daycare for a number of hours per week or she would lose her spot. Father and girlfriend said the knife incident was true and the relative was in custody with a "no trespassing order." Girlfriend denied that father put a hand on her, as son claimed. Both parents denied domestic violence in the home the previous night, that police were called to the home for fighting, and that there were arrests for fighting. Father said he smoked marijuana for years, but he smoked outside when the children were asleep.

The Dependency Petition and Detention Hearing

On March 1, the Agency filed a dependency petition that alleged son came within the provisions of section 300, subdivisions (b)(1) (failure to protect), (f) (causing another child's death through abuse or neglect), and (g) (no provision for support). The subdivision (b)(1) allegations were based on daughter's worsening condition and lack of medical treatment; domestic violence between father and girlfriend, and father's aggressive behavior; father smoking marijuana in the children's presence; and mother's unknown whereabouts and previous referrals relating to child abuse. The subdivision (g) allegation was based on mother's unknown whereabouts.

By the March 4 detention hearing, son had been placed with paternal grandfather. The juvenile court granted county counsel's request to strike the section 300, subdivision (f) allegation, as the detective told the social worker on February 28 that daughter's death was from natural causes. The juvenile court ordered son detained. Before the detention hearing, father was provided with referrals for anger management and individual counseling, parenting, and a substance abuse disorder (SUD) assessment.

An autopsy was performed on the morning of February 28.

The Agency's Jurisdiction and Disposition Reports

In the Agency's jurisdiction report, the social worker explained that while the autopsy results indicated daughter's death was from natural causes, the Agency was concerned father's neglect of her medical needs may have contributed to her decline and death. The Agency also was concerned son's medical needs were being neglected, as he said he did not go to the doctor when he was sick, and his medical records indicated many of his appointments were cancelled or "'no shows.'" Medical records showed son had been to the doctor only once since April 22, 2015, on October 23, 2018, and his immunizations were not up to date.

Although father and girlfriend denied there was domestic violence between them, father had a criminal history related to domestic violence and demonstrated aggressive behavior toward the social worker and public health nurse. According to police reports and calls for the last four years, law enforcement responded often to father's home due to fights between him and uncle, which uncle always initiated. The last such incident resulted in uncle's arrest. Son said he witnessed the violent situation and was very scared to see uncle with the knife, and was afraid uncle would kill him and G.W.

The Agency requested a CLETS for father, which revealed 13 entries from January 2007 to July 2013. The Agency provided a summary of criminal history pertaining to aggressive behavior, domestic violence, robbery and selling marijuana, which included: (1) misdemeanor convictions in 2002 and 2012 for obstructing or resisting a public officer (Pen. Code, § 148, subd. (a)), for which he received 36 months' probation on each conviction; (2) two felony convictions, in February and November 2008, for inflicting corporal injury on a spouse (Pen. Code, § 273.5), which resulted in father receiving 36 months' probation and 30 days in jail on each conviction; (4) a 2010 charge of selling or furnishing marijuana or hashish (Health & Saf. Code, § 11360, subd. (a)), which was dismissed in furtherance of justice; and (4) a charge in July 2013 for threatening crime with the intent to terrorize (Pen Code, § 422), which stated the disposition was "WARRANT."

In its disposition report, the Agency recommended father be offered family maintenance services. Father worked at a local masonry, but his job typically had him working in the Bay Area. Since son's removal, however, he had stayed close to home. While he used marijuana for back pain, he did not use any other substances, and he used the marijuana away from the children and usually at night. Father did not believe he needed services to reunify with son and did not agree with the Agency's decision to remove him. Son appeared to be in good health, was developmentally on track, and did not qualify for mental health services. He was in kindergarten and doing well in school. He was doing well living with paternal grandfather and was happy there.

Although father was provided referrals at the detention hearing, he had not attended the SUD assessment or completed the application for counseling services. He had been visiting son regularly and the visits were enjoyable. Since the investigation, father had been aggressive toward Agency workers and visitation staff. While the social worker understood father might be dealing with grief, his behavior made him difficult to work with. The Agency believed father had cared for daughter to the best of his ability. The Agency wanted to see son kept up to date on his yearly physicals and immunizations, and for father to complete the SUD assessment and obtain a recommendation. The Agency believed father could benefit from counseling services that would focus on grief and loss, anger management, domestic violence and any other issues that may arise.

Nearly two weeks later, the Agency filed an addendum report, in which the Agency changed its recommendation to family reunification services for father due to the Agency's ongoing concerns and father's unwillingness to engage in services. The Agency remained concerned about reported domestic violence between father and girlfriend. Father had not completed a domestic violence program following the incident of domestic violence with mother. Father continued to display aggressive behavior toward Agency staff, as shown most recently by father's April 8 visit, which ended early due to father's failure to follow visitation guidelines. Father became angry and argumentative to the point where security had to be contacted. As father left the room, he cursed at the staff and said inappropriate things, all of which son witnessed.

At an April 10 meeting, father admitted there was domestic violence with mother, but denied any domestic violence with girlfriend. Girlfriend showed son's immunization card and said they were current, as he needed them to enter kindergarten. On April 22, father said he would do family maintenance services, although he did not want to, and would attend grief counseling if the Agency wanted. Father agreed to complete a hair follicle test, which he said would be positive for marijuana.

The Agency was concerned about father's lack of engagement and participation in the case. The Agency had seen anger and resistance from father, yet he had not engaged in services that would address those issues, including anger management and individual counseling. Father had not begun parenting classes, which would address issues concerning his failure to make medical appointments. While father admitted marijuana use, he refused to complete the SUD assessment as he did not believe he needed to. Due to father's lack of engagement, the Agency could not appropriately assess him. While the social worker was hopeful father would engage in services to show his commitment to addressing the Agency's concerns, he had yet to do so. The Agency feared father would not engage in services if son were returned home.

The Jurisdiction and Disposition Hearing

A contested jurisdiction and disposition hearing was held over several days. The juvenile court accepted an offer of proof by the Agency that the social worker would testify an "SDM" is used to help identify the family's strengths and needs in order to develop a case plan, and since the recommendation for family maintenance services, the Agency had continued to assess the family. Father said he was willing to do family maintenance services only for counseling to address the trauma that stemmed from the Agency's involvement and grief counseling if the Agency felt he needed it. Father did not allow the Agency to fully assess him and had not demonstrated any engagement or progress in services since the family maintenance recommendation.

An "SDM Family Strengths and Needs" assessment, which was performed on April 4, also was admitted into evidence.

A delivered service log for April 25 was admitted into evidence, which related a contact the social workers had with son that day. When the social workers asked son if he had seen his parents fight, son responded they only argued. Son denied seeing father hit girlfriend, although he said uncle once came to his house and hit father with a bike lock, and father grabbed a shovel, but did not hit his uncle with it. A social worker asked why son told the first social worker he saw father hit girlfriend, but he was now saying he had not seen that. Son shrugged his shoulders and said, "'I don't know.'"

The Agency called father as a witness. Father admitted being convicted twice of inflicting corporal injury on a cohabitant, who was mother, and serving jail time for each conviction, and claimed they were charged as felonies, but reduced to misdemeanors. Both times father was released on probation. He chose not to complete a 52-week batterers prevention class, instead opting for increased jail time, because it was hard to attend classes due to "work and everything," and he felt he did not need the class, as he got out of the relationship with mother. He had not completed any domestic violence classes since then.

Father denied the domestic violence son reported seeing actually occurred, and said son may have been mistaken and had "quite the imagination." Father also denied that son witnessed any arguments or fights between he and girlfriend, other than "normal bickering here and there." Father said son was not present during the knife incident with uncle, who father described as a mentally unstable homeless person who liked to come by his house and cause problems.

Father refused to complete the SUD assessment because he "heard it was just something [the Agency] might want me to do," and he was not a drug addict and had no history of drug use, which the hair follicle test could determine. Although father answered "Yes" when asked if he was willing to engage in grief counseling, he added that he did not want to talk to a counselor about his grief, as it was something he wanted to handle on his own. Father denied having an anger management problem and said he was able to control his emotions appropriately, as shown by his ability to stay employed. Father denied raising his voice when he spoke to the visitation supervisor at the end of the April 8 visit, and explained he was naturally loud due to his construction job and sometimes did not realize how loud he was being. He did not recall cussing as he walked out of the visitation center.

Father confirmed son had not been to the doctor in a few years, except when he got his immunizations. Father did not take son to the doctor on a regular basis because son was healthy and never sick—the way father was raised, you did not need to go to the doctor if you were not sick. Father was shown a screen shot of medical appointments for son that stated son was a "no-show" for two appointments in March and April 2014, and five appointments in 2013. Father said he probably was busy at work and he thought the appointments had been rescheduled, as he "was pretty sure he's been to the doctor since then." Father claimed daughter only missed two medical appointments while in his care.

Father did not think the Agency should be involved with son, as he was healthy, rarely missed school, and was taken care of. Father was willing to do court-ordered services "[i]f that's what's needed," although he had not participated in any type of counseling or SUD assessment since the start of the case.

After county counsel rested, father's attorney moved to dismiss the case, arguing there was no evidence of a nexus between father's actions and risk of harm or detriment to son. During the course of the attorneys' arguments, the juvenile court granted the Agency's motion to amend the petition to conform to proof. Specifically, the petition was amended to add an allegation that son's medical needs also were neglected, as son reported he did not go to the doctor when he was sick, medical records showed many of son's appointments were cancelled or "'no shows,'" and since April 2015, son had been to the doctor only once, on October 23, 2018, for his immunizations. The juvenile court then denied the motion to dismiss.

Father's girlfriend testified on father's behalf. She had known father and son for five years, and had been in a relationship with father the same period of time. She lived with father the first four years of their relationship and moved out in October 2018 so she could "find [her]self as a person." She moved back in with father two weeks before the hearing. Girlfriend denied that any argument with father led to her decision to move out. After daughter came to live with father and girlfriend in March 2018, girlfriend helped take care of daughter's needs, including changing her diaper, giving her a bath, dressing her, feeding her, and brushing her teeth and hair. Girlfriend described father's relationship with son as "loving and caring," and there was a bond between them.

Girlfriend denied there was domestic violence with father, and said the events son told the social workers about did not occur and he was lying. She and father had been in arguments, which she described as "[b]ickering back and forth and not agreeing upon something," and said the difference between an argument and domestic violence is that an argument is verbal, while domestic violence is physical. The most confrontational argument girlfriend had with father was "yelling back and forth and me leaving the house," which happened once a year. Police had never been called due to any argument she had with father and she was not afraid of him. The arguments occurred in son's presence once or twice, which girlfriend admitted was not appropriate. The last time son witnessed such an argument was over five months ago. Son was not present during the argument between father and uncle, in which uncle brandished a knife, as girlfriend took him on a family trip to the coast.

Father was recalled by his attorney. Father said that daughter was diagnosed with Sanfilippo Syndrome when she was four and a half years old. From then on, daughter slowly deteriorated due to the disorder and forgot how to do everything, such as walk, talk, chew, swallow and breathe on her own. Paternal grandmother passed away unexpectedly, so he had not anticipated taking care of daughter, did not have a transition period, and was not aware of her scheduled doctor's appointments. Father said the only other service VMRC offered him was a caretaking home in San Bernardino, which he did not feel was "logical" for his relationship with daughter.

Father denied using drugs or alcohol. He smoked marijuana because he had severe scoliosis, but he did not consider marijuana to be a drug, as it was not a drug or intoxicant "under the [S]tate of California." He refused to take prescription drugs for his pain because he had seen what it did to the children's mother. He usually used marijuana at night, and would smoke on the front porch after son went to bed, and girlfriend or someone was around. He felt he was able to care for son when he used marijuana.

Father described the knife incident—uncle rode up on his bicycle, yelling and screaming at him, slashed the tires on father's truck, and rode away. Father had him thrown into jail. Son was not around; father would not let son be around uncle, as uncle was mentally unstable. Father did not think he had an aggressive personality. Father confirmed paternal aunt had gotten a restraining order in 2012 based on an allegation that he hit her, but father said that "was false." The restraining order was for three years and father never violated it. Father claimed to now have a "[f]abulous relationship" with paternal aunt.

Following the attorneys' arguments, the juvenile court found true the allegations in the amended petition, adjudged son a dependent child, removed him from parental custody and granted father reunification services. Father's case plan included completion of a clinical assessment to determine if he required additional services regarding domestic violence or anger management, and to follow any recommended treatment, as well as individual counseling to address grief and loss, anger management, domestic violence, or other issues. Father was given a minimum of twice weekly unsupervised visitation in the community, with the understanding no romantic partner may be present, which the Agency had discretion to liberalize.

DISCUSSION

Father challenges the juvenile court's removal order on two grounds: (1) there was insufficient evidence son would be at substantial risk of harm if returned to his custody and (2) the juvenile court failed to consider whether removal was the only reasonable way to protect son.

In order to remove a child from parental custody, the juvenile court must find by clear and convincing evidence there is or would be a substantial danger to the child's physical or emotional well-being if the child were returned home and there are no reasonable means by which the child's physical health can be protected short of removal. (§ 361, subd. (c)(1).) If the agency recommends removal of the child from the home, the agency's social study must include a discussion of the reasonable efforts made to prevent or eliminate removal. (See Cal. Rules of Court, rule 5.690(a)(1)(B)(i).) The juvenile court must "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and "shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).) "[R]easonable efforts ... need only be reasonable under the circumstances, not perfect [citation]." (In re H.E. (2008) 169 Cal.App.4th 710, 725.)

"The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances." (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)

On a challenge to the juvenile court's dispositional order, we review the evidence to determine whether substantial evidence supports it. We do so bearing in mind that the juvenile court's decision to order a child removed from parental custody must be supported by the heightened standard of clear and convincing evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We conclude substantial evidence supports the juvenile court's removal order.

Father posed a substantial danger to son's safety and emotional well-being because he knowingly exposed son to his aggression and anger, as well as domestic violence. Son had witnessed father hit girlfriend on the head with a closed fist, was aware of father's verbal abuse of girlfriend, and wanted to "'beat up'" father in order to stop him from fighting with her. The record is replete with evidence father had difficulty managing his anger and frustration, as shown by father's treatment of school and Agency personnel. Paternal grandfather and paternal great-aunt each described father's behavior as aggressive. Father claims he was merely upset with the Agency due to its intervention following daughter's death, but his anger was evident before her death and extended beyond the Agency to school personnel. While father admitted engaging in domestic violence with the children's mother, he never received treatment because he felt he did not need it. Father's untreated anger placed son at risk because he could become a victim of father's rage and, as son was young and vulnerable, would be unable to protect himself.

Moreover, father denied he had a problem with anger and that he had an aggressive personality, and minimized his behavior. Denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision, and it is appropriate for a juvenile court to consider a parent's level of denial when determining the risk to the child if placed with that parent. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044; In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge."].) While a parent does not have to agree with a false accusation, the juvenile court may conclude a parent's denial reflects an underlying resistance to treatment needed to effect the behavior changes that will ensure the child's safety. (In re Esmeralda B., supra, at p. 1044.) While father claimed he would participate in services if they were court-ordered, the juvenile court was in the best position to weigh the significance of father's refusal to recognize his problem with anger in considering whether there was a substantial risk to son if placed with him.

Father also claims the record shows the juvenile court failed to consider less drastic measures than removing son from him, as (1) the Agency did not describe in its reports the "'reasonable means' it had considered and rejected in reviewing whether [son] could be safely placed with" him and (2) the juvenile court did not state the facts on which it based its decision to remove son from his home, as required by section 361, subdivision (e). Father asserts that had the juvenile court considered less drastic alternatives, it likely would have returned son to him under stringent conditions of supervision such as unannounced Agency and public health nursing visits, and in-home counseling services.

Contrary to father's assertion, the Agency's disposition and addendum reports show it considered and rejected a less drastic alternative to removal, namely returning son to father with the provision of family maintenance services. The Agency rejected that alternative, however, because father refused to engage in services that would address the problems that led to Agency intervention. County counsel argued this to the juvenile court, explaining father's failure to engage in services prevented the Agency from assessing father and showed the risk to son had not been mitigated. In response, father's attorney asked the juvenile court to consider, as an alternative to removal, placing son with father and setting a progress review, with father engaging in domestic violence classes and the Agency monitoring father's marijuana use and son's medical appointments. Thus, the juvenile court had before it evidence and argument concerning an alternative to removal, which it rejected when it found there were no reasonable means by which son's physical health could be protected without removing him from father's custody.

As for father's assertion the juvenile court did not "state the facts on which the decision to remove the minor is based," as required by section 361, subdivision (e), while the failure to make the required findings under section 361 is error, we may infer the basis from the evidence. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218-1219; In re Corienna G. (1989) 213 Cal.App.3d 73, 83.) If the evidence is sufficient to support the basis, as we have found it to be here, any error is harmless. (In re Basilio T. (1992) 4 Cal.App.4th 155, 171; In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136-1137 [any error is harmless because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody].) The juvenile court obviously believed father's issues had not been resolved and it was not safe for son to live with him until he had availed himself of the services to address his anger. There is no reasonable probability the result would have been different had the court stated its reasons for removal on the record.

DISPOSITION

The juvenile court's orders are affirmed.

/s/_________

MEEHAN, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SNAUFFER, J.


Summaries of

Stanislaus Cnty. Cmty. Servs. Agency v. J.W. (In re B.W.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 22, 2020
No. F079293 (Cal. Ct. App. Jan. 22, 2020)
Case details for

Stanislaus Cnty. Cmty. Servs. Agency v. J.W. (In re B.W.)

Case Details

Full title:In re B.W., a Person Coming Under the Juvenile Court Law. STANISLAUS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 22, 2020

Citations

No. F079293 (Cal. Ct. App. Jan. 22, 2020)