Opinion
E033638.
10-23-2003
In re J.B. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. L.B., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. William C. Katzenstein, County Counsel, and Julie A. Koons, Deputy County Counsel, for Plaintiff and Respondent. Konrad S. Lee, under appointment by the Court of Appeal, for Minors.
Mother appeals juvenile court orders, entered at a six-month review hearing, declaring mothers three sons, J.B. (born in January 1998), L.B. (born in February 1999), and K.D. (born in June 2001), dependents of the juvenile court. Mother objects to the court continuing J.B. and L.B. in foster care and placing K.D. with his father, rather than returning the children to mother.
For purposes of anonymity, the children are referred to by their initials.
Mother contends there is insufficient evidence supporting the courts finding that returning her children to her would create a substantial risk of detriment to the children. Mother further contends the trial court erred in placing K.D. with his father. She argues this was not in K.D.s best interests since it would result in separating him from his siblings, and K.D.s father has a criminal history, difficulty controlling his temper, and had not visited K.D.
We reject mothers contentions. There was ample evidence supporting the trial courts findings mother had not made sufficient progress in eliminating those factors which placed her children at risk of abuse and neglect. As to K.D., there was sufficient evidence supporting the juvenile courts placement of K.D. with his father. We affirm the judgment.
1. Facts and Procedural Background
Upon hospitalization of K.D. for respiratory distress on May 3, 2002, Loma Linda Medical Center notified the Riverside Department of Public Social Services (DPSS) that K.D. had multiple adult bite marks on his stomach and shoulder. He also had lacerations to his liver most likely inflicted by extreme force, such as by a fist or foot. K.D. was 10 months old at the time.
Mother informed a DPSS social worker that she was unaware of the bite marks and "thought they were just spots." She said she brought K.D. to the hospital because he was having difficulty breathing. When asked how she disciplined her children, she said, "I admit I whoop them," and clarified this meant she hit them with a belt.
Mothers boyfriend, Devon, told the DPSS social worker that mother hit her children with a belt, was not close to J.B. or L.B., and the police had come to their home twice during the past month due to domestic violence between him and mother. Devons mother, with whom mother, Devon, and the children lived, told the DPSS that, "I have told [mother] over and over not to hit those kids the way she does. She just lets it go. She doesnt hold back. Ive told her not to hit them like that."
Each of mothers three children had different fathers, and mother was seven months pregnant with her fourth child who was fathered by Devon. The childrens fathers whereabouts were unknown. J.B. and L.B.s fathers were incarcerated out of state. Mother had recently moved to California from Mississippi.
Mothers three children were taken into protective custody. On May 7, 2002, the DPSS filed a dependency petition under Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse), (g) (no provision for support), and (j) (abuse of sibling, K.D.).
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
On May 8, 2002, the juvenile court found the petition allegations true and ordered the children detained and suitably placed. The court authorized supervised visitation between the children and mother.
The DPSS located K.D.s father, Kenneth, in Mississippi and interviewed him on May 15, 2002. He requested K.D. be placed with him or the childs paternal grandmother. Kenneth and mother agreed Kenneth had provided for K.D. financially and had helped care for him.
On July 1, 2002, mother informed the DPSS she was moving back to Mississippi. On July 22, 2002, the DPSS filed an amended petition and addendum report stating that mother intended to move to Mississippi; the DPSS had initiated a home study under the Interstate Compact on Placement of Children (ICPC) to determine the appropriateness of out-of-state placement; J.B.s father had been located in prison; and Kenneth had been in constant contact with the DPSS regarding the well-being of K.D.
On August 8, 2002, the court found true the amended petition allegations under section 300, subdivisions (b), (e), (g), and (j). The court ordered reunification services provided to mother and that the children be suitably placed together.
On February 24, 2003, the DPSS filed a six-month status review hearing report stating that the children had lived in a foster home since June 20, 2002, but their foster mother had requested removal of the children because caring for them was too demanding. The DPSS recommended placing K.D. with his father and allowing mother an additional six months to reunite with J.B. and L.B.
At the time, mother was 21, living in Mississippi with her fourth child, a six-month-old daughter, and with her mother, sister, and sisters child. She was pregnant with her fifth child. Mother had only completed eighth grade and was living on welfare. A social worker in Mississippi provided mother with reunification services, including a parenting course and counseling for anger management and domestic violence. She had not visited her children in California since moving to Mississippi but had spoken to them on the phone at least three times a month.
The family assessment update in the February status review report stated Kenneth lived in a two bedroom apartment in Mississippi with his wife. He was unemployed but his wife had a salary. Kenneth has a criminal history of petty offenses, including malicious mischief, disorderly conduct, petty larceny, simple assault, shoplifting, and multiple vehicle and traffic violations between February 2000 and mid-2001, with his last charge in 2002 consisting of driving with a suspended license. While in state prison in 1997, he completed his G.E.D. Kenneth acknowledged difficulty controlling his temper. Kenneth completed a parenting course and enrolled in counseling for anger management and domestic violence. Although Kenneth had not visited K.D. since living in Mississippi, he had provided child support. The DPSS recommended placing K.D. with Kenneth in Mississippi.
The May 1, 2003, addendum report stated the children had been moved to three separate foster homes. Mississippi had approved placement of K.D. with Kenneth. Mother did not have a suitable residence for her children. The DPSS social worker did not recommend placing the three boys with mother since the perpetrator of K.D.s bites had not been identified; mother had not accepted responsibility for the biting incident; mother had frequent contact with two of the suspects, Devon and his mother; and mother needed more intensive counseling services. Mississippi offered only a maximum of four sessions which was insufficient. In California mother could have received at least six to eight weeks of parenting instruction and several months of counseling.
At the six-month review hearing on May 1, 2003, DPSS social worker, Sonya Johnson testified she believed mother had not benefited from the services provided in Mississippi. Johnson further testified mother said she was moving back to California. Mother had recently visited K.D. twice and K.D. appeared not to recognize her. Mother testified she was living in Riverside and intended to live there permanently.
In accordance with the social workers recommendation, the court declared the three children dependents of the juvenile court, ordered J.B. and L.B. suitably placed, authorized placement of K.D. with Kenneth, ordered continued reunification services to mother for J.B. and L.B., ordered a family maintenance plan for Kenneth, amended mothers plan, and set a review hearing in July, 2003.
2. Custody of Children
Mother contends the court lacked sufficient evidence to support its finding that it would be detrimental to return her children to her custody.
As set forth in section 366.21, subdivision (e), the court must return the child to the parent at the six-month review hearing unless it finds the DPSS has met its burden of establishing by a preponderance of the evidence that doing so would create a "substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. . . . The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental."
Section 366.21, subdivision (e).
On appeal, "[w]e review the correctness of an order pursuant to section 366.21 to determine if it is supported by substantial evidence. [Citations.]"
In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.
Here, substantial evidence supports the finding that, despite mother completing anger management, parenting and domestic violence courses and participating in four therapy sessions, mother had not made substantive progress in her court-ordered treatment program. At the time of the six-month review hearing, mother still did not have a permanent home, job, high school degree, or work skills, and she was pregnant with her fifth child.
Although mother had exhausted all Mississippi counseling services offered, the Mississippi social worker assigned to her case and the Riverside social worker, Sonya Johnson, did not recommend placing the children with mother. Johnson explained in the six-month review hearing addendum report, filed in April 2003, that mother did not accept responsibility for the bites on K.D.s abdomen and shoulder, and the perpetrator of the bites had not been disclosed.
In addition, mother remained in frequent contact with two of the prime suspects, her boyfriend, Devon, and his mother. Mother had indicated she intended to reside permanently in California at a residence adjacent to Devon and his mothers residence.
Mother argues she did not receive reasonable reunification services. Johnson noted in her April addendum report that, although mother attended all four therapy sessions offered in Mississippi, this was not sufficient for purposes of preparing her for custody of her children. Mother argues she was not offered any additional therapy sessions in Mississippi and thus cannot be denied custody of her children when her reunification plan was inadequate.
"`Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced. [Citation.] Reunification services implement "the laws strong preference for maintaining the family relationships if at all possible." [Citation.] [Citation.]" Moreover, "[t]he agency must make reasonable efforts to provide suitable services, `in spite of the difficulties of doing so or the prospects of success. [Citation.]" "`In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. . . . `Section 361.5 has been construed, however, to require "[a] good faith effort" to provide reasonable services responding to the unique needs of each family. [Citation.]"
In re Precious J. (1996) 42 Cal.App.4th 1463, 1472.
In re Luke L. (1996) 44 Cal.App.4th 670, 678.
In re Precious J., supra, 42 Cal.App.4th at page 1472.
Johnson concluded in the April addendum report that the reunification services provided in Mississippi were not adequate. Mississippi does not offer the same services mother would have received in Riverside. The counseling was not as intensive as mother needed. Mother argues that she did all that she could to reunify. She completed all reunification services and counseling services offered in Mississippi and should not be penalized for not meeting California standards.
The record supports the trial courts finding that mother received reasonable services. Mother chose to move to Mississippi and thus forgo the services offered in Riverside. In Mississippi, she was provided with all of the reunification services available there and she still was not fit to regain custody of her children. Her counselor in Mississippi and Johnson both concluded she needed more counseling and there had not been any significant change in her circumstances. The children remained at risk of being abused and neglected.
Regardless of whether mother is at fault for not receiving sufficient services in Mississippi, the record shows she had not sufficiently progressed or changed for purposes of regaining custody of her children. There was thus sufficient evidence that returning the children to mother would have created a substantial risk of detriment to their safety, protection, and physical and emotional well-being. Mother failed to eliminate the conditions leading to the childrens placement out of home. The failure of a parent to make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.
See section 366.21, subdivisions (e) and (f); In re Dustin R. (1997) 54 Cal.App.4th 1131, 1142.
Section 366.21, subdivision (e)(1).
3. Placement of K.D. with Father
Mother contends the trial court abused its discretion in authorizing placement of K.D. with his father, Kenneth, in Mississippi. K.D. was almost two years old at the time. Mother argues Kenneths criminal history, his difficulty controlling his temper, separation of K.D. from his siblings, and K.D.s lack of contact with Kenneth established that placement with Kenneth put K.D. at risk and thus was not in K.D.s best interest.
The DPSS argues mother has no standing to object to K.D.s placement with Kenneth under In re Frank L.
In re Frank L. (2000) 81 Cal.App.4th 700.
"Generally, parents can appeal judgments or orders in juvenile dependency matters. [Citation.] However, a parent must also establish she is a `party aggrieved to obtain a review of a ruling on the merits. (Ibid.) Therefore, a parent cannot raise issues on appeal from a dependency matter that do not affect her own rights. [Citation.] Standing to appeal is jurisdictional. [Citation.]" Generally, a parent has no standing to raise a childs right to visit his siblings. But if the parents interests are intertwined with the childs interests in visiting siblings, and affect the parents interests, the parent may have standing. For instance, if placement results in termination of sibling visitation and this places a childs welfare and the parent-child relationship at stake in a dependency proceeding, the parent has standing to contest standing based on sibling separation.
In re Frank L., supra, 81 Cal.App.4th at page 703.
In re Frank L., supra, 81 Cal.App.4th at page 703.
In Frank, Franks mother argued it was not in Franks best interest to be placed out of state because he would be separated from his siblings. The court in Frank held mother lacked standing to raise the issue. Frank is distinguishable because there the mother appealed a postpermanency review hearing order placing Frank with his paternal aunt out of state. In Frank the court concluded there was no standing to assert the sibling visitation issue: "[B]ecause of Franks placement in long-term foster care, the parent-child relationship is no longer at stake. (See, e.g., In re Taya C. (1991) 2 Cal.App.4th 1, 7 [the tie between parent and child is severed by the referral to the Welf. & Inst. Code, § 366.26 hearing].)"
In re Frank L., supra, 81 Cal.App.4th at page 704.
In the instant case, mother raised the sibling visitation issue during the six-month review hearing. The court had not terminated mothers reunification services or set a section 366.26 hearing. Mother still had an interest in reuniting with her children and sibling separation was relevant to that interest. We thus conclude mother has standing to object to K.D.s placement with Kenneth.
In considering the issue on the merits, we conclude the trial court did not abuse its discretion in ordering K.D. placed with Kenneth. He and his siblings, J.B. and L.B. each had different fathers. While Kenneth had little if any prior contact with K.D., he had provided financial support for K.D. and, when notified K.D. had been removed from mothers custody, he offered to take custody of K.D. and had completed a parenting course and anger management and domestic violence counseling. During the dependency proceedings, Kenneth frequently called the DPSS to inquire regarding K.D.s well-being.
The DPSS initiated a home study under the ICPC to determine the appropriateness of out-of-state placement with Kenneth in Mississippi. A home evaluation and background check were completed on Kenneth and his wife, resulting in approval of K.D.s placement with Kenneth in Mississippi. After thoroughly investigating placement with Kenneth and his wife, the social worker concluded Kenneth was able to provide K.D. with a good, safe home and accordingly recommended placing K.D. with Kenneth. While Kenneth had a criminal history of petty offenses, the DPSS did not consider this a sufficient deterrent to placing K.D. with Kenneth.
Since Kenneth was willing to take custody of K.D., and the record indicates he and his wife were able to provide K.D. with an adequate home, the court did not abuse its discretion in separating K.D. from his siblings so that he could live with his father. The court reasonably ordered K.D. placed with Kenneth subject to supervision by the social worker, with reunification services to continue as to both mother and Kenneth. Substantial evidence supports the juvenile courts order placing K.D. with his father.
4. Disposition
The judgment is affirmed.
We concur: McKinster, Acting P.J., and Richli, J.