Opinion
D071059
02-02-2017
In re Dominic W. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.A., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SJ13148ABC) APPEAL from orders of the Superior Court of San Diego County, Ronald L. Johnson, Judge. (Retired Judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
R.A. appeals the juvenile court's orders denying his request at the 12-month review hearing for placement of his three minor children, Dominic, Daniel and M.A., or alternatively, for overnight visits. R.A. asserts that there is insufficient evidence to support the court's finding that it would be detrimental to place the minors in his care. We reject this challenge and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2014, R.A. and Andrea I., the minors' mother, voluntarily placed the minors with their maternal grandparents. At that time, Dominic was 13 years old, Daniel was 11 and M.A. was seven. Andrea was struggling with long-standing alcohol addiction and admitted that she could not safely parent the minors. The family had a history of involvement with the San Diego County Health and Human Services Agency (Agency), including a voluntary case, successfully closed in 2010, that began as a result of Andrea's alcohol abuse and allegations of domestic violence by R.A. In May 2015, the Agency received the referral that precipitated this proceeding after R.A. forcefully took M.A. from her grandparents at one of Daniel's baseball games, against the grandparents' and M.A.'s wishes, causing a disturbing scene and prompting police involvement.
After receiving the referral, the Agency interviewed the maternal grandfather, David W., who reported that days earlier, he had found Andrea naked in her apartment. Andrea told her father that R.A. was holding her captive and had taken all of her clothes to prevent her from leaving. David said that he took Andrea to a motel room for safety, but that R.A. picked her up shortly after. When David was unable to locate Andrea, he filed a missing person report with the sheriff. Andrea was located a week later when she arrived at a hospital alone and badly bruised all over her body. She gave inconsistent accounts of what had happened during the time she was missing, at times alleging that R.A. had kept her intoxicated in order to prevent her from leaving him.
The Agency's social worker also interviewed the minors at school. M.A. reported that she was scared to leave her brother's baseball game with R.A. because her mother was missing and "she did not want her father to take her too." M.A. told the social worker that she was scared to live with her parents and that they did not know how to take care of her. Daniel, who was withdrawn during his interview, told the social worker that he and his siblings did not want to live with their parents. He said that he was worried for M.A.'s safety because R.A. yells and is very mean, and Andrea drinks too much and cannot care for them. Daniel denied having seen his parents hit each other, but stated that R.A. gets angry for no reason and acts "very scary."
In his interview, 13-year-old Dominic told the social worker that he was worried about M.A.'s safety and feared that R.A. would take her and never bring her back. Neither Daniel nor Dominic thought that their parents were capable of caring for M.A. Dominic denied having seen any domestic violence between his parents, but told the social worker that David had once flown to Las Vegas to get Andrea after R.A. had beaten her up. He also reported having seen R.A. yell at Andrea loudly and in her face, and said that he had seen R.A. punch couches and walls out of frustration.
On May 22, 2014, the Agency filed petitions under Welfare and Institutions Code section 300, subdivision (b) in the juvenile court on behalf of the minors alleging that they had suffered or were at substantial risk of suffering serious physical harm because of their parents' inability to adequately supervise or protect them. At the detention hearing, the juvenile court designated R.A. the presumed father, found that the Agency had made prima facie showings on the allegations in the petitions, detained the minors with the maternal grandparents, and set the jurisdictional and dispositional hearing.
All subsequent statutory references are to the Welfare and Institutions Code.
In a meeting with the Agency's social worker after the detention hearing, R.A. was defensive and accused the maternal grandparents of brainwashing the minors against him. The minors expressed their desire to remain with their maternal grandparents, where they felt safe. The minors also reiterated their fear of R.A. and their desire not to live with him. Dominic stated that in the past, R.A. had hit him with a belt, knocked him down and kicked him, and threatened him. Dominic stated that R.A. would force Andrea to consume alcohol, and that R.A. also drank, and that when he did, he would become very angry.
At the initial jurisdiction and disposition hearing, the Agency recommended domestic violence treatment, counseling, parenting education and substance abuse testing for R.A. R.A. contested jurisdiction and disposition and the court set the matter for trial. During the time between the filing of the petitions in May and the final contested jurisdictional and dispositional hearing in September, the minors refused to attend visits with R.A. R.A. also failed to participate in any of the services outlined in the case plan provided by the Agency.
At the September 15, 2015 trial, the court admitted into evidence the Agency's reports and related documentation. R.A. did not present any evidence. At the conclusion of the hearing, the juvenile court found by clear and convincing evidence that the allegations in the Agency's petition were true, declared the minors dependents of the court, removed them from their parents' custody and continued placement with the maternal grandparents. The court ordered reunification services for R.A. and Andrea, including domestic violence group therapy for R.A., over his objection.
R.A. appealed the juvenile court's judgment, which this court affirmed by unpublished opinion on March 15, 2016, in case number D068913.
Over the subsequent six months, R.A. had little contact with the Agency or the minors. Despite referrals from the Agency, R.A. did not begin individual therapy, but did participate in domestic violence group therapy. R.A. did not see the minors, but visitation was complicated by the maternal grandparents, who resisted taking the minors to see their father. During the review period, Andrea moved to Los Angeles, was alleged to be involved in a new relationship, and was in and out of recovery programs. In its report for the six-month review hearing, the Agency recommended six additional months of reunification services. At the six-month review hearing on March 15, 2016, R.A. requested a trial on the issues of reasonable services and visitation.
Before the trial, R.A.'s participation in services improved. He began supervised visitation with the minors at the Agency's facility and then progressed to visitation supervised by the paternal grandmother. R.A. also started individual therapy, completed his parenting course, and continued to attend domestic violence group therapy. However, R.A. did not accept responsibility for his role in bringing the minors into the dependency system. His therapist reported that he was defensive and denied the true findings made by the juvenile court at disposition.
At the pretrial conference on June 9, 2016, R.A. withdrew his request for trial. The court found that it would be detrimental to place the minors with either parent, but authorized unsupervised visitation for both, and conjoint therapy for R.A. with the minors. The court set the 12-month review hearing for July 26, 2016.
Thereafter, R.A. continued his participation in reunification services. His therapist reported that he was becoming less defensive and more cooperative during their sessions. The therapist told the social worker that R.A. was doing well and that the therapist had no concern for the minors' safety. R.A. also continued to attend his domestic violence group regularly, though he still failed to acknowledge why he needed to attend and told others that he was a volunteer for the program. For the 12-month review hearing, the Agency stated that R.A.'s visitation with the minors had continuously improved and was occurring regularly. The minors no longer expressed fear about spending time with R.A., and reported that they wanted to eventually reunify with both of their parents. However, all three minors also told the family's social worker that they were not ready for overnight visits with R.A. For the 12-month review hearing, the Agency recommended the minors' continued placement with their maternal grandparents and that the family receive six additional months of services. At the hearing, R.A. requested trial on the issue of overnight visitation with the minors. The matter was set for a pretrial status conference on August 31, 2016.
During the review period, Andrea also was engaging in services successfully, maintaining her sobriety, and visiting regularly with the minors. The maternal grandparents were also more cooperative and were allowing regular visitation with both parents with less interference.
In its report for the status conference, the Agency reported that R.A.'s most recent visit with the minors had gone badly and that the minors were refusing additional visits with him. Dominic told the family's social worker that during a visit on August 13, 2016, he and R.A. got into an argument about where to eat. Dominic said that R.A. began driving erratically and making negative, alarming comments about the maternal grandparents and Andrea. Daniel told the social worker that R.A. "acted crazy and basically insulted everyone." All three minors stated that they were afraid of R.A. and felt that they were in danger.
R.A. requested overnight visitation with the minors in August. The Agency's social worker visited his home on August 15, 2016, and determined that there were safety concerns that would have to be addressed before overnight visitation could be approved.
At the August status conference, the juvenile court set the trial for September 19, 2016. Before the trial, R.A. met with the Agency's social worker. He was frustrated that the Agency could not force the minors to visit him. He believed that the maternal grandparents were brainwashing the minors and trying to manipulate them with promises of extravagant gifts if they refused to see R.A. The social worker visited R.A.'s home and found that most of the required repairs had been made. The Agency's final addendum report before the contested 12-month review hearing, dated September 13, 2016, stated that the Agency could not physically force the minors to visit R.A., but hoped continued therapy for the minors would alleviate their resistance to visitation with R.A.
At the trial, R.A. did not present any affirmative evidence. The Agency's attorney reiterated the Agency's position that placement or overnight visitation with R.A. should be delayed until the minors were willing to reestablish their relationship with him. The attorney stated that the Agency hoped that R.A. would continue to engage in services and that visitation would be expanded during the next review period. The minors' counsel adopted the arguments made by the Agency's counsel and emphasized the importance of therapy for the minors. The minors' counsel also focused on the importance of both parents having an equal opportunity to resume custody of the minors. R.A.'s attorney argued that the Agency had failed to show that returning the minors to his care would be detrimental to them, despite the minors' unwillingness to see R.A. R.A.'s attorney also pointed to the Agency's earlier reports, which he asserted suggested that overnight visitation would be appropriate in the near term.
After hearing argument, the juvenile court stated that it agreed with the Agency that continued therapy for the minors would be appropriate to help them understand the importance of their relationship with R.A. and, in particular, to help Dominic understand that R.A. had the right to parent him. The court also concluded that in order to improve the relationship between R.A. and the minors, it was necessary to maintain the status quo with the expectation that the family would progress to overnight visitation or custody at the next review hearing. The court proceeded to find by a preponderance of the evidence that forcing the minors to have overnight visitation with R.A. would be detrimental to them. The juvenile court returned educational rights to R.A. and Andrea, and lifted a no contact order between them that had been put in place at the outset of the case, so that they could begin efforts to coparent the minors.
DISCUSSION
I
At the 12-month review hearing the juvenile court must "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." (§ 366.21, subd. (f)(1); § 366.22, subd. (a)(1); see In re Marilyn H. (1993) 5 Cal.4th 295, 308.) The Welfare and Institutions Code specifies that the social worker carries "the burden of establishing that detriment." (§366.22, subd. (a)(1).)
"By authorizing the continued removal of a child from parental custody based on the risk of either physical detriment or emotional detriment, sections 366.21 and 366.22 focus on the child's well-being at the time of the review hearing rather than on the initial basis for juvenile court intervention. [Citation.] Thus, while the court must consider the extent the parent has cooperated with the services provided and the efforts the parent has made to correct the problems which gave rise to the dependency (§ 366.22, subd. (a)), the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child. (Ibid.)" (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.)
This court reviews the entire record to determine whether there is substantial evidence to support the court's finding that the minors would be at substantial risk of detriment if returned to R.A.'s care. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401.) "In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the trial court's order. [Citation.] 'Substantial evidence' means evidence that is reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.] In the absence of substantial evidence showing such detriment, the court is required to return the minor to parental custody." (Ibid.)
II
R.A. argues that the Agency failed to meet its burden because it showed only that the minors did not want to move out of the maternal grandparents' home, and did not provide evidence showing that returning the minors to R.A.'s care would pose a substantial risk of detriment to their safety, protection, or physical or emotional health. In support of this assertion, R.A. relies on the evidence of his increased engagement in reunification services and visitation. He also points to the Agency's statement in its latest addendum report that the minors were participating in therapy "in the hopes that therapy might uncover some underlying issues that must exist here and shed some light onto why the children are so adamant that they do not feel safe with their father at this time." R.A. argues that this statement constitutes an admission by the Agency that there was no risk of detriment and that if the minors' therapy could have uncovered such a risk, it should have been brought forward by the Agency before the trial. R.A. also relies on his own explanation of the August 13, 2016 altercation, which he claims resulted from the maternal grandparents' interference in his relationship with the minors.
R.A. 's arguments are not well taken. He focuses too narrowly on one statement in the Agency's September report and his own version of the August 13th incident and ignores the substantial evidence that the Agency presented that supported the juvenile courts' finding that forcing the minors into R.A.'s care would be detrimental to their emotional well-being. The Agency's reports showed that the minors only recently began to feel safe with R.A. and that R.A. still had not taken responsibility for the role he played in bringing the minors into the dependency system. The domestic violence group therapy provider reported that R.A. had not acknowledged the reasons for his need to participate in group therapy and that he continued to blame others for his situation. Further, R.A.'s behavior on August 13, 2016, placed the minors in danger. Dominic, Daniel and M.A. all reported that R.A. had driven erratically that day and that they were frightened by R.A.'s actions. Those actions caused the minors, whose trust R.A. had been slowly regaining, to understandably fear for their safety while with him. Rather than accept responsibility for his behavior on August 13th, R.A. rationalized his actions and blamed the maternal grandparents for his argument with Dominic.
This evidence is sufficient to support the juvenile court's finding that forcing the minors—against their wishes—to begin overnight visits with R.A. or placing the minors with him would create a substantial risk of detriment to their well-being. As the juvenile court did, we applaud R.A.'s progress and his efforts to improve his relationship with his children. Our review, however, is limited and R.A.'s progress in the months preceding the August incident does not negate the evidence that supported the juvenile court's orders.
R.A.'s reliance on David B. v. Superior Court (2004) 123 Cal.App.4th 768 (David B.) and In re Danielle M. (1989) 215 Cal.App.3d 1267 (Danielle M.) is misplaced. As the Agency notes, in both cases the detriment finding was based solely on the parent's living arrangements and financial circumstances, and not on the physical or emotional risk to the minor, resulting in a reversal. (David B., supra, 123 Cal.App.4th at pp. 792-793; Danielle M., supra, 215 Cal.App.3d at p. 1271.) Here, the finding was based on R.A.'s failure to recognize his role in the proceeding and the minors' fear of him based on his actions. Even R.A., in his briefing, recognizes that the issue in this case is unlike those present in David B. and Danielle M.
DISPOSITION
The orders are affirmed.
AARON, J. WE CONCUR: MCCONNELL, P. J. HUFFMAN, J.