Opinion
E069476
02-07-2018
J.V., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Dennis Moore for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J263481) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Steven A. Mapes, Judge. Petition denied. Dennis Moore for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.
Petitioner J.V. (father) previously filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452 (8.452), challenging the trial court's jurisdictional finding as to his child, N.V. (the child) and setting a Welfare and Institutions Code section 366.26 hearing. We vacated the section 366.26 hearing; reversed the trial court's finding that the child came within section 300, subdivision (b), with respect to father, and remanded the matter to the trial court to conduct a new disposition hearing with father as a nonoffending parent. At the new disposition hearing, father requested that the child be placed with his aunt. The court removed the child from father's care and custody, denied father reunification services, and set a section 366.26 hearing.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
Father has now filed a second 8.452 writ, arguing that the court erred in finding it detrimental to place the child in his care and custody. Father has also requested a temporary stay of the section 366.26 hearing. We deny the request for a stay and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background
A statement of the factual and procedural background regarding this case was set forth in our prior unpublished opinion, by which we granted father's first 8.452 petition for extraordinary writ. (J.V. v. Superior Court (June 22, 2017, E068051) [nonpub. opn.].) We incorporate portions of that statement into this opinion and state the following:
On November 15, 2017, we ordered the record in case No. E068051 incorporated in the record in the instant case.
On December 29, 2015, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was seven months old at the time. The petition alleged that he came within section 300, subdivision (g) (no provision for support). It specifically alleged that the child's mother (mother) was incarcerated and that "[t]he unknown father's whereabouts, capacity, and willingness to care for the child [were] unknown."
Mother is not a party to this writ. --------
The detention report stated that CFS received a referral that there were two family members fighting over a baby boy whose mother was incarcerated. The social worker obtained a detention warrant to remove the child. The court held a detention hearing on December 30, 2015, and detained the child in foster care.
On January 19, 2016, CFS filed a first amended petition, which alleged two different fathers—D.P. and father. It also added the allegation that the child came within section 300, subdivision (b), and specifically alleged that mother had a substance abuse history and criminal history.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on January 19, 2016, recommending that the court sustain the amended petition, that the child be removed and placed in out-of-home care, and that no reunification services be provided to father or mother. The social worker reported that mother and the other alleged father, D.P., were married at the time of conception and birth of the child. They were still married and were also both currently incarcerated. The social worker reported that father was currently incarcerated at High Desert Detention Center, with an unknown release date. However, the declaration of due diligence stated that father was incarcerated at the Adelanto Detention Center. Notice of the jurisdiction/disposition hearing and the first amended petition were sent to the facility in Adelanto.
The court held a jurisdiction/disposition hearing on January 20, 2016, and the matter was continued to February 10, 2016. On February 10, 2016, father filed a statement regarding parentage declaring that he believed he was the child's father, and that he wanted to be appointed an attorney. Father stated he was incarcerated before the child was born, and he had family that was willing to take care of the child.
At the further jurisdiction/disposition hearing held on February 10, 2016, father was not present and was not appointed counsel. The court found father to be the presumed father of the child. It also found that the child came within section 300, subdivisions (b) and (g). It declared the child a dependent of the court, removed him from parental custody, and denied reunification services to mother and father.
Six-month Status Review
The social worker filed a six-month review report on August 9, 2016, recommending that a section 366.26 hearing be set and adoption be the permanent plan. Father remained incarcerated. The child was doing well in his placement and was bonded with his caregiver. However, when outside of his comfort zone, he was easily frightened by others and needed to be held. These concerns were being addressed in therapy. The social worker noted that there was a relative going through the relative assessment unit (RAU) process who was willing to provide permanent care for the child.
On August 10, 2016, the court set a section 366.26 hearing for December 8, 2016.
At a hearing on September 12, 2016, the court ordered counsel to be appointed for father.
Section 388 Petition and Section 366 .26
On November 7, 2016, father filed a section 388 petition, requesting that all jurisdictional and dispositional findings be vacated and another jurisdiction/disposition hearing be set. The court set a hearing for December 8, 2016.
On December 1, 2016, the social worker filed a section 366.26 report, recommending that parental rights be terminated and the permanent plan of adoption be implemented. The social worker reported that father and mother continued to be incarcerated, and the child had not had any contact with them. The child had been in a placement with relatives since May 12, 2016, and they wished to adopt him.
The court held a hearing pursuant to sections 388 and 366.26 on January 23, 2017. The court granted father's section 388 petition, vacated the jurisdictional and dispositional findings as to him, and set a hearing for February 28, 2017. Father informed the court that his release date was March 8, 2019.
That same day, the social worker filed additional information for the court, and reported that, after the last hearing, he was contacted by a paternal aunt, Mrs. C.R. (the aunt), who was interested in providing a permanent home for the child. Her information was obtained and the RAU process began. The social worker arranged for biweekly visits. However, after visits with the aunt started, the child began displaying abnormal behavior, including anxiety, excessive crying, refusing to eat, and throwing tantrums. He constantly wanted to be held and to have frequent assurances that he was okay. The social worker attended a visit and observed that he looked scared and hardly engaged with the aunt, and he had no apparent attachment or bond with her. Thereafter, visits with the child were terminated. The child was seen by a therapist weekly, and he became stable again. The social worker recommended that the child remain in his current prospective adoptive placement.
The social worker filed a second amended petition with regard to father on February 27, 2017, and alleged that the child came within section 300, subdivisions (b) and (g). Specifically, the petition alleged that father had a criminal history that compromised his ability to properly parent the child, and that he was incarcerated until March 2019, making it impossible for him to provide for the child. The social worker also filed a detention report, which showed father's criminal history as a list of numerous dates, two Health and Safety Code sections, various Penal Code sections, and one Vehicle Code section. The social worker further reported that the aunt was assessed and approved by the RAU. However, there was concern about the quality of attachment and bond between her and the child.
On April 3, 2017, the court held a contested jurisdiction/disposition hearing. Father was present and represented by counsel. The court sustained the section 300, subdivision (b) allegation and found the subdivision (g) allegation to be not true. It found father to be the presumed father but denied reunification services, pursuant to section 366.26, subdivision (e)(1), because the length of his incarceration exceeded the statutory time for services. The court set a section 366.26 hearing for August 8, 2017.
The court then asked father what his request on the disposition was, and father requested that the child be placed with the aunt. County counsel asked for the child to remain in his current home, noting that past visits with the aunt caused the child distress. The court noted that the law favored relative placements, so it ordered CFS to allow visits with the aunt and work toward the goal of relative placement. The court stated that the aunt was not doing anything inappropriate; rather, the child was just fearful. Since the court wanted to "follow the law of preference for family members," it asked CFS to facilitate visits "to see if things change in that regard."
Father filed a petition for extraordinary writ, which this court granted. We vacated the section 366.26 hearing; reversed the trial court's finding that the child came within section 300, subdivision (b), with respect to father; and remanded the matter to the trial court to conduct a new disposition hearing with father as a nonoffending parent. (J.V. v. Superior Court, supra, E068051.)
B. Additional Facts Pertaining to the Instant 8.452 Writ
The court held a nonappearance review hearing on May 24, 2017. CFS reported that it began facilitating visits between the aunt and the child on April 12, 2017, and there had been 12 visits since that time. The child continued to have difficulty transitioning from his foster parents to the care of the aunt for the visits at the CFS office. The visits were thus moved to a play place in a shopping mall to make him feel more comfortable. The child enjoyed those visits and was happy being around other children. After four visits at the mall, the social worker moved the visits back to the CFS office, but the child continued to show a lack of attachment to the aunt. He would allow her to give him snacks and change his diapers, but resisted her efforts toward playing, physical affection, and nurturing. During the visits, the child often asked for the foster parents and tried to leave the room. When the foster parents returned, he was excited to see them and wanted to leave with them. The social worker opined that the child only saw the aunt as "a friendly visitor," but did not adapt to being with her at length, despite the many hours of visits he had had. The aunt minimized the child's negative responses to her and believed he was doing well. She showed the social worker pictures of the child taken while he had a visit at her home a year prior. The social worker observed that he looked upset and fearful in all the pictures. She noted that the child demonstrated the same expressions during the current visits. The foster parents reported that, after his visits with the aunt, the child was anxious, easily frightened, and had nightmares. He would often wake up screaming, crying, and yelling for them. The child began biting off the tops of his cups and the nipples of his bottles, and he only wanted to be held by his foster mother. The court thus ordered visits with the aunt to be terminated.
On September 26, 2017, the court held a hearing and scheduled the new disposition hearing for November 14, 2017. The court stated that it was concerned about the best interest of the child and ordered CFS to continue to assess the aunt.
The social worker filed additional information to the court. She reported that the child had remained with the potential adoptive parents, was doing well in their home, and continued to have a strong bond with them. The social worker reported that the aunt called about having visits. Even though the aunt saw how upset the child was during visits, she did not acknowledge the effect the visits had on him. Due to the "trauma displayed by the child" and the aunt's lack of insight, CFS did not want the child to have visits with the aunt. The child was stable; thus, CFS did not believe it was in the child's best interest to put him back into a situation that was previously determined to be detrimental. The social worker recommended the court find that reunification services would be detrimental to the child, since father was incarcerated. (§ 361.5, subd. (e)(1).) The social worker further recommended that the child be declared a dependent and that the court order adoption to be the permanent plan.
The new disposition hearing was held on November 14, 2017. Father was not present since he was incarcerated out of state, but he was represented by counsel. As a nonoffending parent, he requested, pursuant to section 361.2, that the child be placed with the aunt, with a family law exit order. Father's counsel acknowledged that the child cried and was distressed at times when he visited with the aunt; however, he argued that such evidence did not rise to the level of clear and convincing evidence of detriment. County counsel responded that the issue of placement with the aunt had been discussed for a long time, and CFS had previously filed a detailed packet which included a therapist's recommendation against it, having seen the child and his response to the aunt. County counsel noted that CFS tried to see if the child would be more responsive to contact with the aunt, but he was still having the same negative reactions to her.
The court found father to be the presumed father of the child, removed the child from his custody, and denied reunification services, pursuant to section 361.5, subdivision (e)(1). The court noted that it looked back at the packet it signed on June 1, 2017, and did not see any change in the child's reactions to the aunt. Thus, it denied father's request to have the child placed with her. The court stated there was clearly detriment, and placement with the aunt was not in the child's best interest. However, the court authorized visits in a therapeutic setting, in order to continue trying to help the family, pending the section 366.26 hearing.
ANALYSIS
There Was Sufficient Evidence to Support the Court's Detriment Finding
Father contends there was insufficient evidence to support the court's finding that placement with the aunt would be detrimental to the child. We disagree.
"Section 361.2, subdivision (a), provides in part that '[w]hen a court orders removal of a child pursuant to Section 361, 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.' " (In re Noe F. (2013) 213 Cal.App.4th 358, 367-368.) "If a noncustodial, incarcerated parent seeks custody of the child, the court must determine whether placement with that parent would be detrimental to the child's safety, protection, or physical or emotional well-being. [Citation.] Among the factors in determining detriment are the noncustodial, incarcerated parent's ability to make appropriate arrangements for the care of the child and the length of that parent's incarceration." (Id. at p. 368.)
"The juvenile court must make the detriment finding by clear and convincing evidence. [Citations.] We review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that placement would be detrimental to the child." (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262 (Patrick S.).)
Here, because father was incarcerated, he was not in a position to care for the child, so he requested that the child be placed with the aunt. The record clearly demonstrates that placement with her would be detrimental to the child's emotional well-being. (§ 361.2, subd. (a).) The aunt had biweekly visits with the child. He reacted negatively to the visits and displayed abnormal behavior after them, including anxiety, excessive crying, refusing to eat, constantly wanting to be held, and throwing tantrums. When the social worker attended a visit, she observed that the child looked scared and hardly engaged with the aunt, and he had no apparent attachment with her. Thereafter, visits were terminated, the child was seen by a therapist weekly, and he became stable again.
Despite the child's issues with visits, CFS again attempted again to encourage a relationship between him and the aunt. Visits were reinstated on April 12, 2017, and they occurred twice a week, for two or three hours. As of May 24, 2017, there had been 12 visits. The record shows that the child still had difficulty transitioning from his foster parents to the aunt for the visits at the CFS office. The social worker arranged visits at the mall to help the child feel more comfortable with the aunt, and then moved them back to the CFS office. Nonetheless, the child still showed a lack of attachment to her. He would allow her to give him snacks and change his diapers, but resisted her efforts toward playing, physical affection, and nurturing. The social worker opined that the child only saw the aunt as "a friendly visitor." Despite the many hours of visits, he still had difficulty when his foster parents left him with her. The child often asked for them and when they returned, he was excited and wanted to leave with them. The social worker noted that the child looked upset and fearful when he had visited the aunt's home a year prior, and he still had the same expressions at current visits. Furthermore, after visits with her, the child was anxious and easily frightened. He had nightmares and would often wake up crying and yelling for the foster parents, and he only wanted to be held by the foster mother.
Thus, despite much effort and numerous visits, the child continued to exhibit severe emotional reactions during and after the visits. Viewing the record in the light most favorable to the court's order, as we must, we conclude there was substantial evidence that placement with the aunt would be detrimental to the child's emotional well-being. (Patrick S., supra, 218 Cal.App.4th at p. 1262; § 361.5, subd. (a).)
Father primarily relies upon Patrick S., supra, 218 Cal.App.4th 1254, In re John M. (2006) 141 Cal.App.4th 1564 (John M.), and In re C.M. (2014) 232 Cal.App.4th 1394 (C.M.) to argue that a minor's desire to remain with his caregivers, and fear and anxiety, do not support a finding of detriment. These cases are distinguishable.
In Patrick S., supra, 218 Cal.App.4th 1254, the minor was 13 years old at the time of the dispositional hearing. (Id. at p. 1265.) The juvenile court found that placement with his father would be detrimental to his emotional well-being because he was diagnosed with adjustment disorder and was in need of therapeutic support, he had anxiety about living with his father, he had no relationship with his father or stepmother, he did not want to live with his father, and his father was scheduled to be deployed. (Id. at pp. 1260-1261.) The appellate court reversed, finding that these factors did not constitute substantial evidence of detriment. (Id. at p. 1262.) This case is distinguishable because the minor was a teenager at disposition, while the child in the instant case was less than two years old. Moreover, there was no evidence that the minor had any negative reactions to the father, or any emotional or behavioral issues after being with him. To the contrary, the social worker observed that the minor and his father spent time together, "conversing freely and enjoying each other's company." (Id. at p. 1258.) In fact, the record shows that the minor had a "great week" visiting the father and his family, and he was resigned to living with them. (Id. at pp. 1258, 1260.)
In John M., supra, 141 Cal.App.4th 1564, the minor was a teenager who was removed from his mother's custody and placed with his grandmother. (Id. at p. 1567.) The minor stated he did not want to live with his father because his father lived in the country. (Id. at p. 1568.) The juvenile court found detriment, since there had been little contact between the minor and his father and they had no ongoing relationship, the minor did not want to move, the father was out of state, the minor had serious problems that could be addressed where he was living, and he had a sibling relationship where he was. (Id. at pp. 1568-1569.) The appellate court reversed because the agency did not meet its burden of showing detriment. (Id. at p. 1571.) This case is distinguishable from the instant case. Although the minor had problems such as "serious emotional disturbance and attention deficit hyperactivity disorder," there was no evidence that his emotional problems were a result of contact with his father. (Id. at p. 1571.) In contrast, the child in the instant case had negative reactions to the aunt at visits, and after the visits, he displayed abnormal behavior, such as anxiety, excessive crying, refusing to eat, constantly wanting to be held, and throwing tantrums.
In C.M., supra, 232 Cal.App.4th 1394, the court reversed the juvenile court's order finding that placement with the father would be detrimental since it was not supported by substantial evidence. (Id. at p. 1402.) The court noted that the minor's wishes not to live with her father, her sibling bonds, and her lack of relationship with her father, could be considered, but were not determinative. (Id. at p. 1402.) We note that, although she did not want to live with her father, she was not opposed to overnight visits with him. (Id. at pp. 1398-1399.) Also, there was no evidence the minor suffered any emotional detriment from being with her father. In contrast, the child in the instant case exhibited behavioral issues when visiting the aunt for only two or three hours. In addition, he had serious behavioral issues after visits. (See ante.)
Ultimately, the record supports the court's finding of detriment here. In view of the child's negative and fearful reactions to the aunt during relatively short visits, and his serious behavioral issues after visits, the record clearly demonstrates that placing the child with father, in the home of the aunt, would be detrimental to the child's emotional well-being.
DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.