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W.R. v. Superior Court of Orange County

Court of Appeal of California
Apr 23, 2009
G041616 (Cal. Ct. App. Apr. 23, 2009)

Opinion

G041616

4-23-2009

W.R., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.

Juvenile Defenders and Lawrence A. Aufill for Petitioner. No appearance for Respondent. Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency. Deborah A. Kwast, Public Defender, Frank Ospino, Assistant Public Defender, Geraldine Wong and Paul DeQuattro, Deputy Public Defenders, for Real Party in Interest T.R. Law Office of Harold LaFlamme and April Kleis for Real Party in Interest N.R.

Not to be Published in Official Reports


INTRODUCTION

Petitioner, W.R. (father), is the father of N.R., now nine and one-half years old. N.R. was taken into protective custody in May 2007. Pursuant to California Rules of Court, rule 8.452, father seeks a writ of mandate ordering the juvenile court to vacate its order terminating family reunification services and setting a permanency hearing under Welfare and Institutions Code section 366.26. (All further statutory references are to the Welfare and Institutions Code.) The permanency hearing is scheduled for June 1, 2009.

Father argues there was no substantial evidence supporting the juvenile courts finding that returning N.R. to fathers custody would create a substantial risk of detriment to N.R.s physical or emotional well-being. We disagree, and therefore deny the petition.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

N.R. and his three half siblings were taken into protective custody by the Orange County Social Services Agency (SSA) in May 2007, based on allegations of general neglect. N.R.s mother, T.R. (mother), had a history of substance abuse and mental illness, and had been involuntarily hospitalized in April 2007. Father was on parole in Texas, and had had no contact with N.R. since he was a baby. (Father is not the father of N.R.s half siblings.) N.R. and his half siblings were placed in the home of mothers godmother, N.H., where they had resided with mother for the previous three years. The juvenile court ordered family reunification services, and authorized visitation.

In July 2008, SSA learned that father had been arrested for assault in connection with a domestic dispute and spent a few nights in the county jail. Father confirmed he had been arrested, and stated, "`Im on Parole, anything I do they can arrest me, this was not nothing." Father refused to sign a consent to release information about the arrest.

In a status review report filed in November 2008, SSA reported that N.R. suffered from attention deficit disorder (ADD), which was being treated with medication. N.R. had progressed well in therapy, and was able to state his feelings without anger and was in control of his emotions. The social worker expressed concern about N.R.s emotional well-being if he were to be placed in fathers custody. "N[.R.] has made such significant progress in his behaviors and self-control. Much of this is due to N[.R.]s hard work as well as [N.H.]s dedication to N[.R.] and N[.R.]s therapy appointments and school interventions. [N.H.] sees that N[.R.] is participating in therapy weekly. She has shown him consistency, unconditional love and support. . . . The undersigned is concerned that the child may begin to digress into old behaviors that will be the symptom of distrust and inconsistency if he is removed from the only family he has known."

As of the date of the November 2008 status report, the social worker had not received necessary information to complete an evaluation of fathers home in Texas. The social worker could not recommend placement of N.R. with father because (1) N.R. did not want to move away from N.H. or his half siblings, (2) N.R. and father had not spent enough time together to develop the trusting relationship and bond which would be vital to N.R.s emotional well-being, and (3) fathers status of being on active parole would place N.R. at risk of reentering the child welfare system.

N.R. and father had regular telephonic contact, and N.R. travelled to Texas for a visit in December 2008.

In an addendum report filed in January 2009, SSA noted: "It is important for the Court to hear N[.R.]s wishes to remain placed with N[.] H[.] and his siblings. N[.R.] has made consistent and clear statements that he wishes to remain placed with Ms. H[.] and live with his family in California. He has stated that he loves his father and would like to continue to visit him." In another addendum report filed in February 2009, SSA reported that fathers parole officer advised the social worker that father had changed residences, apparently without notifying SSA. The parole officer made the following statement about father: "`He is not real stable. What I mean by that is he can not verify any income, he makes excuse after excuse and I am concerned how he is able to support himself without income that is verifiable[.]"

At the 18-month review hearing, father testified he was unaware of and would not consider N.R.s desire to remain with N.H. Father did not believe SSAs reports of N.R.s desire to stay in California with his half siblings. Father did not believe N.R. was currently in a stable and loving environment because "hes my child, and he belongs in my stable, loving environment." Father expected N.H. to split the costs of transporting N.R. to California to visit his half siblings if N.R. were placed with father in Texas.

Father was aware that N.R. went to therapy, but did not know the therapists name. Father did not know the name of N.R.s physician, did not know what type of medication N.R. took for his ADD, and had not inquired about N.R.s medical condition. During the Interstate Compact on the Placement of Children (ICPC) investigation, father told Texas social service workers that N.R. did not need special care, had no hostile or aggressive behaviors, and was not disturbed, fussy, or irritable, despite N.R.s ADD and documented behavior problems.

Father admitted he had been arrested in May 2008 for domestic violence, and had been in jail for a couple of weeks. Father claimed the charges were unfounded, and were the result of his fiancée becoming angry about his interaction with another woman. Father did not believe it was a problem that his fiancée would lie to the police about him.

Father provided inconsistent testimony regarding his income and job stability. Father admitted he had not advised the Texas authorities conducting the ICPC investigation he was planning to marry his current girlfriend, and she had therefore not participated in the ICPC risk assessment as a potential caretaker for N.R.

At the 18-month review hearing, N.R. testified did not want to live with father in Texas because N.R.s friends and family were in California. N.R. would "feel very sad" if he could not see N.H. or his half siblings. N.R. described N.H. as "[k]ind of like a mom" to him, and he felt closest to N.H. of anyone in his family, including father. Although N.R. enjoyed visits with father and wanted more visits, he would not want to live with father, even if father moved to California. N.R. wanted to live in California.

The juvenile court found returning N.R. to fathers custody would create a substantial risk of detriment. "Mr. R[.] has a degree of rigidity with reference to his agenda which would I believe and do believe from the evidence would preclude him from accommodating N[.R.]s emotional needs. [¶] . . . [T]here is no cohesive and credible plan that Mr. R[.] was able to articulate in terms of maintaining a visitation between N[.R.] and individuals significant in N[.R.]s life. The court understands that this is not a beauty contest where the court evaluates Mr. R[.]s home against all that N[.R.] currently has in California. . . . The question is whether theres a substantial risk of physical or emotional harm to the child. The court finds that Mr. R[.] would not maintain the contact with individuals of significant emotional importance to N[.R.] and as failure to maintain that contact would create . . . a substantial risk of emotional detriment to N[.R.]s well being. [¶] The court would note that counsel has argued that N[.R.] has stabilized of [late] and the court would find that this disruption to his emotional state again would impair, would undermine his progress . . . and again create a significant substantial . . . detriment to him emotionally. [¶] . . . The concern is not with the fathers visits with the child. The concern is with an ongoing day-in and day-out relationship between N[.R.] and his father. And the court simply finds from the evidence that the lack of candor, the apparent necessity to [identify] discrete[, salient,] and significant features of Mr. R[.]s living situation and particularly in context of the relationship that Mr. R[.] has with his fiancee or girlfriend there was obviously an episode that resolved in police intervention and a time spent by Mr. R[.] in custody. [¶] It is fair to say that that relationship . . . is tempestuous. Mr. R[.] has minimized that significance of that event . . . . However, given Mr. R[.]s significant lack of candor, the court is very concerned with reference to the nature of that relationship of which N[.R.] would be exposed to and is another instance where theres a concern for N[.R.]s emotional well being and potential exposure to issues of domestic violence, but also concerns as to his physical well being." The court then terminated family reunification services, and set the matter for a permanency hearing. Father filed a timely notice of intent to file a writ petition.

DISCUSSION

We review the juvenile courts finding of substantial risk of detriment for substantial evidence. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1345.) "Appellate justices review a respondent courts decision after a section 366.22 ruling as follows: `Evidence sufficient to support the courts finding "must be `reasonable in nature, credible, and of solid value; it must actually be "substantial" proof of the essentials which the law requires in a particular case." [Citation.] "Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" [Citations.] [Citations.] In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination. [Citations.]" (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)

At the 18-month review hearing, "[t]he court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian 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." (§ 366.22, subd. (a).) Father argues that SSA failed to meet its burden of proof. We disagree.

Father is correct in noting that he apparently complied with his case plan. "`In determining whether it would be detrimental to return the child at the 18-month review, the court must consider whether the parent participated regularly in any treatment program set forth by the plan, the "efforts or progress" of the parent, and the "extent" to which the parent "cooperated and availed himself or herself of services provided." [Citation.] [Citation.] `The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. [Citation.]" (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1341.) The converse—that participation in the case plan is prima facie evidence that return of the child to the parents custody would not be detrimental—is not necessarily true, however. (See, e.g., In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140; In re Joseph B. (1996) 42 Cal.App.4th 890, 901.)

In addition to the parents attempts to correct the problems leading to juvenile court intervention, the court must give consideration to the effect returning the child to the parents custody might have on the child. (In re Joseph B., supra, 42 Cal.App.4th at p. 901.) There was ample evidence before the juvenile court that returning N.R. to fathers custody would negatively affect his emotional well-being.

N.R. made clear his desire to live in California with his half siblings and N.H., and not to move to Texas and live with father. SSAs reports showed that N.R.s behavioral problems had lessened while in N.H.s care. Father demonstrated a lack of understanding of or sensitivity to N.R.s behavioral problems, or the effect on N.R. of moving away from a stable family situation. Father had not apprised himself of N.R.s physical or emotional issues and had not communicated with N.R.s health care professionals. With regard to fathers arrest for domestic violence, father either assaulted his fiancée and lied to SSA and the court about it, or father was unable to see any problem in continuing a relationship with a woman who would lie to the police about him assaulting her, because she was jealous of another woman. Father was not stable, had failed to communicate with SSA, and could not verify his income.

"At the section 366.22 hearing, a trial judge can consider, among other things: whether changing custody will be detrimental because severing a positive loving relationship with the foster family will cause serious, long-term emotional harm [citations]; properly supported psychological evaluations which indicate return to a parent would be detrimental to a minor [citations]; whether the natural parent maintains relationships with persons whose presence will be detrimental to the ward [citation]; instability in terms of management of a home [citation]; difficulties a minor has in dealing with others such as stepparents [citations]; limited awareness by a parent of the emotional and physical needs of a child [citation]; failure of a minor to have lived with the natural parent for long periods of time [citation]; and the manner in which the parent has conducted himself or herself in relation to a minor in the past. [Citations.]" (Constance K. v. Superior Court, supra, 61 Cal.App.4th at pp. 704-705.) As detailed, ante, these factors support the juvenile courts order.

DISPOSITION

The petition for a writ of mandate is denied.

WE CONCUR:

OLEARY, ACTING P. J.

ARONSON, J. --------------- Notes: Mothers notice of intent to file a writ petition was untimely, and therefore was stricken by this court.


Summaries of

W.R. v. Superior Court of Orange County

Court of Appeal of California
Apr 23, 2009
G041616 (Cal. Ct. App. Apr. 23, 2009)
Case details for

W.R. v. Superior Court of Orange County

Case Details

Full title:W.R., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent…

Court:Court of Appeal of California

Date published: Apr 23, 2009

Citations

G041616 (Cal. Ct. App. Apr. 23, 2009)

Citing Cases

In re N.R.

In an unpublished opinion, this court denied the petition. (W.R. v. Superior Court (Apr. 23, 2009, G041616).)…