Opinion
D060187 Super. Ct. No. NJ14456
01-11-2012
In re DANIEL M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from findings and orders of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.
R.C. appeals an order denying placement of her son, Daniel M., with his father, Luis R., under Welfare and Institutions Code section 361.2, subdivision (a). She contends that there is insufficient evidence to support the finding that placement with Luis would be detrimental to Daniel's safety, protection, or physical or emotional well- being. R.C. also contends that the juvenile court erred when it denied the parents' requests to continue the dispositional hearing until the Mexican social services agency, Desarollo Integral de la Familia (DIF), completed a home study on Luis's residence in Tijuana, B.C., Mexico. We affirm.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Daniel M., born in December 2003, is the son of married parents, R.C. and Luis M. R.C., Luis and Daniel lived together in the United States (U.S.) until June 2009, when Luis returned to Mexico to apply for permanent U.S. residence. After Luis returned to Mexico, R.C. and Daniel visited him every weekend.
In March 2011, the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b), alleging that there was substantial risk that Daniel would suffer serious physical harm or illness. R.C., who is an alcoholic, was drinking and using marijuana. R.C. had a violent confrontation with her adult daughter and acknowledged that she used physical force to try to control Daniel's behavior, including hitting him with a belt.
Daniel is a special needs child. He has a history of ear infections that has resulted in delayed speech and language development, and behavioral problems. School personnel assessed Daniel with Specific Learning Disability and Speech or Language Impairment. Daniel has an Individual Education Plan (IEP) and requires specialized instruction in reading, math and written language. In addition, Daniel has a Behavior Support Plan to address his attention-seeking behaviors. Daniel also has incidents of encopresis and enuresis.
On March 18, 2011, Daniel was detained with a maternal aunt. Luis said that while he would like Daniel to be placed with him at his home in Mexico, he believed it would be in Daniel's best interests to remain in his aunt's care in view of communication barriers (Luis's primary language is Spanish and Daniel's is English) and Daniel's special needs.
On May 10, the maternal aunt informed the Agency that she could no longer care for Daniel in her apartment due to restrictions in her lease. Luis said that he did not want Daniel to be placed in foster care and requested that the Agency place Daniel with him. R.C. opposed Daniel's placement with Luis because Luis was employed full-time, and R.C. did not believe that Luis could meet Daniel's special needs.
On May 13, the Agency sent a request for a home study of Luis's home to the International Liaison. The International Liaison forwarded the request to DIF on May 18. On May 17, the juvenile court continued the jurisdictional and dispositional hearing to June 15 to allow DIF to complete its evaluation of Luis's home. On June 3, the social worker contacted the International Liaison, who said that DIF was willing to expedite Luis's home study but that Luis had not responded to their messages. On June 15, the court continued the hearing to July 7 for an unrelated reason. At that time, the court stated that the parties should expect the trial to go forward on July 7 even if the DIF evaluation of Luis's home was not completed by that date.
Daniel's second placement failed when his foster parents could not manage his behaviors. His third placement was more successful. Daniel's foster parents put him on a strict schedule. Daniel had not had any toileting accidents since he was placed in their care. He was "doing fine" and seemed happy. When he first arrived, Daniel had a nightmare during which he repeatedly asked his mother not to hit him, but he had not had any nightmares in the past three weeks.
On June 16, DIF did not approve Luis's home study because he had no furniture, other than a bed. DIF informed Luis that it would reassess his home after he corrected the deficiencies. As of June 29, Luis had not contacted DIF. On July 1, Luis told the social worker that he would obtain the necessary furnishings and a refrigerator within the week, and that he would then contact DIF. The social worker asked Luis about other arrangements for Daniel's care. Luis said that he had spoken to a school principal who informed him that the school would not be able to accommodate Daniel's special needs. Luis could not afford to send Daniel to a private school. Luis said that his sister-in-law would help care for Daniel while Luis was at work. The social worker informed Luis that the sister-in-law would not be a suitable caregiver because she had been deported to Mexico after incurring criminal charges in the U.S.
The jurisdictional and dispositional hearing was held on July 7. R.C. submitted to jurisdiction under section 300. Luis, through counsel, asked the court to continue the dispositional hearing for two weeks to allow Luis more time to show that he had made progress remediating the deficiencies in his home or alternately, to continue the hearing for 45 days to allow DIF to complete its investigation. R.C. joined in Luis's motion for a continuance.
The juvenile court denied the motion for a continuance, noting that it had stated on June 15 that it would not further delay the jurisdictional and dispositional hearings, regardless of the status of DIF's evaluation of Luis's home.
At the dispositional hearing, the social worker testified that she believed it would be detrimental to place Daniel with Luis. Luis worked six days a week, his schedule varied and he was not able to identify a suitable person to care for Daniel while he was at work. In addition, when Daniel's problem behaviors escalated, Luis had difficulty communicating with Daniel because they did not share a common language. Further, Luis was not able to address Daniel's academic needs, and Daniel might not have the opportunity to attend school in Tijuana.
R.C. testified that she favored Daniel's placement with Luis but she had some concerns about the placement. Because of the language barrier between Luis and Daniel, it was difficult for Luis to communicate with Daniel when Daniel's problem behaviors escalated. R.C. was also concerned about Luis's long working hours. R.C. also emphasized the importance of continuity of Daniel's medical care. Daniel had a history of ear infections and respiratory problems and saw his physician approximately every three months. R.C. said that it would be difficult to find equivalent medical care for Daniel in Mexico. However, R.C. was willing to transport Daniel from Mexico to San Diego County to see his physician and to attend school. R.C. also was concerned that Daniel would not receive appropriate educational services in Mexico.
The juvenile court found that it would be detrimental to Daniel's physical and emotional well-being to place him in Luis's care, and removed Daniel from parental custody for placement in foster care. The court gave the Agency the discretion to place Daniel with either parent on a 60-day trial visit with the concurrence of minor's counsel.
DISCUSSION
A
The Juvenile Court Did Not Abuse Its Discretion When It Denied the Motion for a Continuance of the Dispositional Hearing
R.C. contends that the juvenile court abused its discretion when it denied the motion to continue the dispositional hearing. She argues that in May 2011, the juvenile court found that continuing the hearing to allow DIF to complete its home study constituted "exceptional circumstances" within the meaning of section 352, subdivision (b), and that those circumstances still existed at the time of the dispositional hearing. R.C. argues that placement with Luis would offer Daniel greater stability than placement in foster care, and that a continuance of the dispositional hearing pending DIF's completion of Luis's home study was therefore in Daniel's best interests.
Continuances are discouraged in dependency cases. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.) Section 352, subdivision (b), provides that if a minor has been removed from the parents' custody, the dispositional hearing must be completed within 60 days after the detention hearing, unless the juvenile court finds that there are exceptional circumstances requiring such a continuance.
We review the denial of a continuance for abuse of discretion. (In re Elijah V., supra, 127 Cal.App.4th at p. 585.) The reviewing court gives broad deference to the juvenile court's decision and should interfere only if it finds that under all the evidence, viewed most favorably in support of the ruling, no juvenile court could reasonably have made that ruling. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
On this record we cannot conclude that the juvenile court abused its discretion when it denied the parents' requests to continue the dispositional hearing. The detention hearing was held on March 22, 2011. The court set a hearing date of April 21 for the jurisdictional and dispositional hearings, which was later continued to May 15 to allow the Agency to develop a case plan for Luis. On May 15 the court found that there were exceptional circumstances and continued the hearings until June 15 to allow DIF to complete its evaluation of Luis's home. The hearings were again continued to July 7.
On June 16 the Agency learned that DIF had denied approval of Luis's home study. DIF informed Luis that he could contact that agency to reassess his home after he remediated the deficiencies that DIF had identified. As of July 7, Luis had not made the necessary changes to his living situation, and had not contacted DIF. Luis's attorney represented to the court that it would take DIF approximately 45 days from the date Luis secured the necessary items to complete its investigation.
The dispositional hearing began on July 7 and concluded on July 13, approximately four months after the detention hearing. On July 1, Luis told the social worker that he would have the necessary items within the week. As of July 13, the record does not indicate that Luis had contacted DIF to reassess his home. The court reasonably determined that further delaying the dispositional hearing until Luis remediated the deficiencies that DIF had identified—which he had failed to do during the previous four weeks, and until DIF completed its reassessment of Luis's home, did not constitute exceptional circumstances within the meaning of section 352, subdivision (b). Further, as the juvenile court indicated, the question of detriment involved more than the lack of furniture and a refrigerator in Luis's home. The juvenile court properly focused on whether Luis would be able to meet Daniel's educational, behavioral, medical and day-to- day needs and, as we conclude below, properly determined that he would not.
B
There Is Substantial Evidence to Support the Finding that Placement with Luis Would Be Detrimental to Daniel
R.C. argues that there is insufficient evidence to support the finding that placement with Luis would be detrimental to Daniel's safety, protection or physical or emotional well-being. (§ 361.2, subd. (a).) She contends that the juvenile court's concerns were either benign or easily resolved, and that the evidence did not establish a clear and convincing showing of detriment. R.C. asserts that because, at the time of the hearing, it was summer vacation, Daniel's educational needs were not immediate, and notes that he did not have to visit his physician in the U.S. more than once every three months. R.C. was willing to transport Daniel from Mexico to attend school and medical appointments in the U.S. She further asserts that it would not be difficult to find adequate childcare for Daniel, and that Daniel and Luis were able to communicate using a mixture of English and Spanish.
When a court orders removal of a child from the custody of a parent under section 361, it 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. If the noncustodial parent requests custody, the court shall place the child with the parent unless it finds that placement with the parents would be detrimental to the safety, protection, or physical or emotional well-being of the child. (§ 361.2, subd. (a).)
The phrase "noncustodial parent" is used as a shorthand reference to refer to a parent described by section 361.2, subdivision (a), that 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 Adrianna P. (2008) 166 Cal.App.4th 44, 55 fn. 6.)
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In determining whether a child may be safely placed in the noncustodial parent's physical custody, the court may consider that parent's past conduct and current circumstances, and that parent's response to the conditions that gave rise to juvenile court intervention. (Cf. In re Cole C. (2009) 174 Cal.App.4th 900, 917 [discussing removal of the child from the custodial parent under section 361.5, subdivision (c)].) The purpose of dependency proceedings is to provide maximum safety and protection for children who are currently being abused, neglected or exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm. (§ 300.2.)
In reviewing the court's findings and orders under section 361.2, subdivision (a), we employ the substantial evidence test, bearing in mind, however, the heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. In addition, we draw all legitimate and reasonable inferences in support of the judgment. (Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402, 408.)
The juvenile court found that placement with Luis would be detrimental to Daniel. Daniel was young and had special needs. Luis could not meet Daniel's needs for adequate childcare, continued medical treatment, or Daniel's special academic needs. The court found that Luis had difficulty calming Daniel when his problem behaviors escalated because Luis and Daniel did not share a common primary language. The court also found that DIF had not approved Luis's home study, and that Daniel's placement with Luis would not be supervised by the Mexican social services agency, increasing the risk that Daniel's physical and emotional needs would not be adequately met. The court's findings are supported by substantial evidence.
The record shows that Daniel is a special needs child whose requirements for special education services, behavioral modification, continuity of medical care and consistent, attentive day-to-day care would not be adequately met if he were placed with Luis. Daniel required stability, structure, attention and consistent discipline. The record permits the reasonable inference that in view of Luis's work schedule and circumstances, Luis could not provide the kind of structure and consistent care that Daniel requires in order to maintain his physical and emotional well-being. Luis works six days a week on an irregular schedule. Luis twice proposed leaving Daniel in the care of a maternal aunt who had been deported from the U.S. to Mexico as a result of drug charges. Although the record shows that under normal conditions, Luis and Daniel were able to communicate using a mixture of Spanish and English, when Daniel's problem behaviors escalate, Luis has difficulty calming him. The local public school in Mexico could not offer special educational services to Daniel, and Daniel might not have the opportunity to attend school in Tijuana, B.C. R.C. believed that it was important to maintain Daniel's medical care with his long-term physician.
We are not persuaded by R.C.'s argument that any problems obtaining special educational services and medical treatment for Daniel in Mexico could be easily alleviated if she regularly transported Daniel from Luis's home to attend school and medical appointments in San Diego County. The record shows that R.C. has an untreated drug and alcohol problem, and has been resistant to treatment. She has a history of drinking and driving, as well. The court ordered that her visitation with Daniel be supervised. R.C.'s offer to transport Daniel to attend school and medical appointments was thus not realistic under the circumstances. Further, because DIF had not approved Luis's home study, there was no reliable way for the Agency to monitor Daniel's stability and well-being if he were placed with Luis.
The power of the appellate court begins and ends with a determination whether there is any substantial evidence, contradicted or uncontradicted, to support the conclusions of the trial court. (Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 447.) The juvenile court reasonably concluded that the deficiencies in Luis's plan for Daniel's care involved more than a lack of furniture, and the completion of the DIF home study was unlikely to resolve other significant concerns about Luis's ability to meet Daniel's special needs. On this record, we conclude that there is substantial evidence to support the finding that placement with Luis would be detrimental to Daniel's safety, protection or physical or emotional well-being. (§ 361.2, subd. (a).)
DISPOSITION
The findings and orders are affirmed.
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AARON, J.
WE CONCUR:
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HALLER, Acting P. J.
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MCDONALD, J.