In re A v. CA4/2 ( 2015 )

Filed 7/17/15 In re A.V. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.V., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E062794
Plaintiff and Respondent, (Super.Ct.No. J252083)
v. OPINION
J. V.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for
Plaintiff and Respondent.
1
I
INTRODUCTION
J.V. (father) is the sole appellant. He is the presumed father to A.V. (the child), a
two-year-old boy, the sole subject of this appeal. Father has three other children, B.V.,
J.V., and K.V., who have a different mother than the child. Father and the child’s mother
are referred to as the parents.
On appeal, father contends that the juvenile court erred in denying visits with the
child after the court terminated his family reunification (FR) services without finding
detriment. For the reasons set forth below, we shall affirm the judgment.
II
STATEMENT OF THE CASE AND FACTS
On or around November 13, 2013, the child, who was about four months old,
came to the attention of respondent San Bernardino County Children and Family Services
(CFS) based upon a referral that mother fought with B.V. The parents reportedly
engaged in domestic violence, broke mirrors and telephones, and drank excessively. The
child’s older half siblings, B.V., J.V. and K.V., reported feeling unsafe in the home.
They also said that the parents hit them and screamed at them. J.V. had a bruise on his
cheek; neither parent could explain how J.V. got this bruise. Since father was on
probation for assault, law enforcement arrested him for a probation violation relating to
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J.V.’s injury and his failure to protect his children from mother.1 Law enforcement often
responded to the home to deal with domestic violence and child maltreatment.
On November 15, 2013, CFS filed a petition under Welfare and Institutions Code
section 3002 in the juvenile court addressing risks to the child, whom CFS detained in
foster care. A separate dependency was initiated for the child’s half siblings, B.V., J.V.
and K.V.
On November 18, 2013, at a detention hearing for the child, the court found a
prima facie case under section 300 and detained the child in foster care, but authorized
placement with a relative upon completion of home assessment. The court ordered a
minimum of weekly two-hour visits with the parents, supervised by CFS or a delegate.
The jurisdiction and disposition report dated December 9, 2013, stated that mother
witnessed father physically abusing J.V., causing a bruise on J.V.’s cheek. Mother made
no effort to protect J.V. Moreover, although mother denied domestic violence with
father, she admitted that there was tension in the home since father’s other three children
moved in with them in April 2013. CFS interviewed father at jail. He agreed with
mother’s statements regarding domestic violence and the older children causing discord.
Mother had no criminal history. Father, however, was convicted of receiving
stolen property in 1996, felony corporal injury to a spouse in 2010, assault with a deadly
1 Father may have been on parole, not probation. His parole officer’s information
was indicated in a subsequent report.
2 All further statutory references are to the Welfare and Institutions Code unless
otherwise noted.
3
weapon in 2010, and abusing or endangering a child in 2013. Father was convicted of
misdemeanor marijuana possession, and felony vehicle taking charges in 1995 and 1998,
respectively. In 2002 and 2007, father was convicted of domestic violence and served
three years, and one and one-half years in prison, respectively. The victim in at least the
latter incident was a female, but not mother. Father was also on parole for assault with a
deadly weapon. His parole was set to expire soon, but would likely be extended because
of the new charges against father.
Mother denied abusing alcohol. The older children, however, reported that the
parents drink beer “all the time” and often scream at each other when drinking. Father
revealed that he had a past history of substance abuse with methamphetamine, but tested
negative through the parole office over the last three years. Father, however, admitted
that he and mother had alcohol-related problems.
Mother confirmed that on November 13, 2013, she fought with B.V.; she wore
makeup against the parents’ direction. Mother tried to inspect B.V.’s makeup, but B.V.
swatted mother away. Mother tried to push B.V. away, but B.V. hit mother. Mother
yelled at her adult daughter to take the child away to protect him, and called 911 to report
B.V.’s behavior. When questioned, father felt mother protected the child and the child
was safe with mother. Father stated that mother is a “great mother” and is very “honest
and loving.”
B.V. told deputies that father recently assaulted J.V. for getting bad grades. Father
took J.V. into the bathroom. B.V. heard father yelling and heard smacking sounds. J.V.
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emerged with a bloody nose and a large bruise on his cheek. B.V. stated that father
regularly gets drunk; when intoxicated, he gets “crazy.” J.V. confirmed B.V.’s account.
On December 3, 2013, father was convicted of willful child cruelty, and was
ordered to attend a child abuse class.
The social worker had “grave concerns” for the safety of the child given father’s
convictions for violent crimes and apparent anger management issues. Father already
completed a 50-week domestic violence treatment program, yet he still engaged in
domestic violence with mother and his older children. He also completed a parenting
course, but continued to use physical discipline. CFS placed the child with a maternal
aunt. The aunt was fearful that father would be upset that she had the child in her care
and would try to visit the child at the aunt’s home.
Mother had no CFS history. Father, however, had numerous referrals from 2008
to 2012 as a result of alleged neglect, physical abuse, and caretaker absence/incapacity.
Father participated in a prior dependency for the child’s half siblings. Those siblings
were placed with an aunt in 2003 where they remained until September 2012, when the
juvenile court ordered family reunification services for father. Father reunified with the
children in May 2013, and the case was closed. CFS initiated another dependency on
behalf of the half siblings.3
3Dependency proceedings in San Bernardino County are classified by the
mother. Therefore, the child’s appellate file does not contain most of his half siblings’
documents since they have different mothers.
5
By January 10, 2014, mother established a separate residence from father. She
also looked for employment and applied for Cash-Aid. Additionally, both parents made
efforts to engage in their case plans, and were appropriate and loving at supervised visits
with the child.
On January 10, 2014, at the jurisdictional and dispositional hearing, both parents
submitted on the CFS reports and recommendations. The court sustained the section 300
allegations relating to the parents’ domestic violence, father’s excessive abuse of alcohol,
and father’s physical abuse of a sibling, which placed the child at risk. The court
dismissed mother’s substance abuse allegations. The court ordered the child removed
from father, placed the child with mother, deemed father presumed, and ordered FR
services for father and final map services for mother. Father’s visits would occur at least
twice weekly, supervised by CFS, or a CFS delegate, not including mother.
Father’s case plan included general counseling, a domestic violence and parenting
education program, and a substance abuse treatment and testing program. Mother’s plan
included a parenting education program and general counseling, with an anger-
management component.
In February 2014, the parents went out for dinner. Mother reported that father did
not enter her home, due to visitation restrictions with the child. After dinner, father went
into a jealous rage in the car. He accused mother of being loose, struck her on the chin,
and threatened to kill her. Mother sustained large bruises on her chin and red marks on
her chest. She concluded that father may be using drugs. She did not contact law
enforcement at that time, but spoke with her counselor within two days, filed a police
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report, and obtained a restraining order in family court against father effective for three
years. In April 2014, the juvenile court ordered domestic violence programs for the
parents.
The first status review report stated that mother did a good job completing her case
plan. Mother stated that the February domestic violence incident was the first time father
was physical with her; she ended her relationship with father. CFS remained concerned
that mother’s counselor only saw bruises on mother by chance and invited mother to talk.
Mother then disclosed the domestic violence incident. The social worker doubted that
this was the parents’ first incidence of domestic violence. The social worker also noted
that mother did not seem to fully comprehend the impact domestic violence can have on
the child.
Father made moderate progress in his case plan. He attended services and was in
contact with the social worker. After the February incident, however, father slowly
stopped engaging in services and became hostile with the social worker. With regard to
the incident, father explained that he accidently struck mother; she was attacking him.
Mother was still participating in a domestic violence program. Father attended
counseling and part of his parenting course, but he failed to attend the domestic violence
and substance abuse programs. He tested negative between March and June 2014, but
also was a no show for six random drug/alcohol screens in that time frame.
The child was two years old. He was thriving and happy in mother’s care. At
supervised visits, father was appropriate with the child, who displayed a strong
attachment to father. Father missed six visits with the child.
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On July 10, 2014, at the review hearing, the court ordered continued final map
services for mother, and FR services for father, who would receive at least weekly visits,
two hours each, supervised by CFS or a delegate.
Around August 2014, father reportedly broke into mother’s home at night and
sexually assaulted her for two hours while the child slept. Father was located and jailed
for burglary and rape. In a packet dated September 22, 2014, CFS detailed the incident
and asked the court to suspend father’s visits.
After continuances, the trial addressing CFS’s packet was set for January 12,
2015, the same date of the next review hearing.
The status review report dated January 12, 2015, recommended termination of
father’s services and a dismissal of the petition, with a family law order granting mother
full custody of the child and no visits for father.
The report provided that mother did an excellent job completing her case plan.
She initially presented as submissive and voiceless, but made tremendous progress.
Mother endured financial hardship because father stopped supporting the child and
mother. She secured a job allowing her to provide for the child. She loves the child and
does not want to jeopardize his placement with her again. Mother demonstrated
protective capacity for the child. She was grateful for CFS intervention, which revealed
father’s true character, and her own strength she never knew she had.
The prognosis for father’s reunification with the child was poor. He made
minimal efforts in services, shirked responsibility for his actions, and demonstrated his
violent and aggressive nature. The social worker wrote:
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“It also concerns the undersigned that the father would continue to behave in such
a destructive manner despite the department’s close involvement and supervision . . . .
“. . . [I]t would be in the best interest of . . . [the child] to remain home with his
mother where he is happy and can continue to thrive. . . . . [T]here is [sic] no further
safety or protection issues that require Children and Family Services supervision with the
family. . . .”
On January 12, 2015, the court held a trial regarding father’s visitation and the
final review hearing on this case. The attorneys chose not to elicit testimony, and instead
argued their positions concerning father’s visits. Father was still in jail at the time.
At trial, CFS recommended a family law exit order permitting monthly visits for
father, supervised by a professional monitor. However, the child’s attorney noted father
faced at least one violent strike and stated:
“I just don’t know how they are going to set that up with a professional monitor
without father having some sort of contact with mom, being able to follow mom home
from the visit. This isn’t going to be in any kind of contact order at all with mom.
“And the child was present when this happened and does not need to be subjected
to any of that any longer considering there was domestic violence long before this started.
“So we are going to ask for no visitations for father.”
Mother’s attorney joined in those arguments, and contended that father lacked
boundaries. The incident occurred despite a no-contact order between the parties.
Mother’s counsel argued:
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“If father can show sometime in the future that he has remediated himself. . . he
can go back to the family law court and show that he has. But for now, I just don’t see
that any changes have taken place in him that would make either [the child] or his mother
safe.”
Father’s attorney objected to suspension or reduction of father’s visits, but did not
oppose the requirement of monitoring by a professional. Counsel added that the court
could specify that father was to arrange visits through the monitor, not mother. Father
had not been found guilty; the order would protect mother. Father would not be a danger
to the child with supervised visits. Specifically, father’s counsel requested visitation to
occur twice monthly, supervised by a professional monitor, at father’s expense, arranged
through the monitor. Counsel also stated that the court could place a “no-contact order
restraining order as it relates to the mother . . . .”
Mother’s attorney argued that there already was a no-contact order in place, which
father “violated in a dramatic and violent fashion.”
Counsel for CFS asked the court to reduce visits to once monthly, given that the
case came to the court in 2013, in large part due to domestic violence between the
parents. Counsel summarized the domestic violence incident in February and the alleged
rape for which father was in custody. Counsel went on to state:
“I do understand why mother and minor’s counsel are requesting a no visits order
. . . we are attempting to make it as safe as possible having the professional monitor, but
again there are concerns because father has already demonstrated his willingness to
violate court orders . . . any visits do pose some risk to the minor.”
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The court then inquired about details on how the visitation exchange could occur
safely. The attorneys argued consistent with their positions.
The court then agreed with counsel for mother and the child, given father’s history
of violence against mother. Counsel for CFS agreed with the court. The court
elaborated:
“[Father] has perpetrated against [mother] one of them being in violation of a
criminal court order.
“[T]his Court is going to order no visits between [father and the child. Father] will
have to rehabilitate himself somehow and make a case in front of a family law judge and
show there has been a substantial change in circumstances in order to grant visitation.
“But I am not going to put [mother] in a position where [father] will once again
violate a court order and follow her delegate home to find out where she is living at a
confidential address. I am just not comfortable making that order.”
Father’s counsel again objected “to the basis for the finding.” Counsel for CFS,
however, agreed with the court, stating, “Your Honor, that’s fine.” The court noted that
the “no-visitation order” was over the sole objection by father, and indicated that the
social worker’s review report was read and considered before terminating father’s FR
services and dismissing the case with a family law order granting mother full custody and
no visits for father.
On January 28, 2015, father filed a notice of appeal relating to the January 12,
2015, hearing.
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III
ANALYSIS
Father’s sole contention on appeal is that “the court erred when it ordered no visits
between father and [the child] when there has been no finding visitation was detrimental
to the child, and the child and father share a bond.”
CFS claims that the juvenile court “was not required to find ‘detriment’ before
suspending father’s visits . . . .” In support of its argument, CFS relies on In re J.N.
(2006) 138 Cal. App. 4th 450. In re J.N., however, is not applicable because the juvenile
court bypassed FR services in that case. (Id. at pp. 458-459.) In this case, father was
given FR services, which were later terminated. To terminate visitation after
reunification services have been terminated, the court must find, by a preponderance of
the evidence, that continued visitation would be detrimental to the child. (In re Manolito
L. (2001) 90 Cal. App. 4th 753, 760; § 366.21, subd. (h).) We will review the court’s
factual finding of detriment for substantial evidence. (In re Mark L. (2001) 94
Cal. App. 4th 573, 580-581.) “In making this determination, we draw all reasonable
inferences from the evidence to support the findings and orders of the dependency court;
we review the record in the light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the trial court. [Citation.]” (In
re Heather A. (1996) 52 Cal. App. 4th 183, 193.)
During the reunification period, visitation is mandatory absent exceptional
circumstances. (§ 362.1, subd. (a)(1)(A); In re S.H. (2003) 111 Cal. App. 4th 310, 317.)
Even an incarcerated parent may not be denied visitation during the reunification period
12
except upon proof of clear and convincing evidence that it would be detrimental to the
child. (In re Dylan T. (1998) 65 Cal. App. 4th 765, 773; In re Brittany S. (1993) 17
Cal. App. 4th 1399; In re Jonathan M. (1997) 53 Cal. App. 4th 1234, 1237, disapproved on
another ground as stated in In re Zeth S. (2003) 31 Cal. 4th 396, 413; § 361.5, subd. (e)(1)
[generally, visitation must be provided to incarcerated parents].) As previously noted,
after reunification services have been terminated, visitation is still mandatory absent a
finding of detriment. (§ 366.22, subd. (a) [“The court shall continue to permit the parent
or legal guardian to visit the child unless it finds that visitation would be detrimental to
the child.”]; In re D.B. (2013) 217 Cal. App. 4th 1080, 1094-1095.)
By contrast, as discussed above, where no reunification services have been
ordered at all, visitation is discretionary, not mandatory. Where reunification services are
denied, visitation is governed by subdivision (f) of section 361.5, which provides: “The
court may continue to permit the parent to visit the child unless it finds that visitation
would be detrimental to the child.” (Italics added.) In In re J.N., supra, 138 Cal.App.4th
at p. 458, the court explained that the permissive language in section 361.5, subdivision
(f), reflects the reality that “visitation is not integral to the overall plan when the parent is
not participating in the reunification efforts.” (In re J.N., supra, at pp. 458-459.) The
child in In re J.N. was 20 months old when the mother was incarcerated for voluntary
manslaughter after the child’s sibling died while in the care of the mother and her
boyfriend. The mother received no reunification services and the child was placed with
the father. When the child was 10 years old, he was declared a dependent child as a
result of the father’s failure to protect the child from abuse by the maternal grandparents
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with whom the child was living. Although mother did not receive any reunification
services, she requested telephone visitation. The dispositional order did not include a
provision for telephone contact with the mother. The appellate court rejected the
mother’s challenge to the order, explaining: “[T]he court may deny visitation to an
incarcerated parent who has been denied reunification services, even in the absence of
any showing that continued visitation would be detrimental to the child.” (Id. at p. 460.)
Therefore, when reunification services are being provided, it is error to deny
visitation with the parent to whom the services apply unless there is sufficient evidence
that visitation would be detrimental to the child. (In re Jonathan M., supra, 53
Cal.App.4th at p. 1238 [arbitrary geographical limit of 50 miles insufficient]; In re Dylan
T., supra, 65 Cal.App.4th at pp. 773-774 [denial of visitation improperly based upon
minor’s age alone]; In re Brittany S., supra, 17 Cal.App.4th at pp. 1406-1407 [denial of
visitation improper where mother incarcerated only 40 miles distance].) A finding of
detriment will be implied when there is substantial evidence in the record to support it.
(In re Angelia P. (1981) 28 Cal. 3d 908, 924-925, superseded by statute on another ground
as stated in In re Cody W. (1994) 31 Cal. App. 4th 221, 230; see also In re Corienna G.
(1989) 213 Cal. App. 3d 73, 83.) An appellate court’s review of a juvenile court’s finding
of detriment is limited to considering whether substantial evidence supports the finding.
(Robert L. v. Superior Court (1996) 45 Cal. App. 4th 619, 625, superseded by statute on
another ground as stated in In re Adrianna P. (2008) 166 Cal. App. 4th 44, 54.)
Here, substantial evidence supports the juvenile court’s implied finding of
detriment to continue visitation between father and the child.
14
In this case, the evidence showed:
(1) Before CFS intervention, deputies often responded to the home of father and
mother to address domestic violence and child maltreatment.
(2) Father has a lengthy CFS history. He participated in dependency for the
child’s siblings. Father resisted reform; he came to the attention of CFS shortly after
dismissal of the case and the siblings came to live with him.
(3) Father had a violent criminal history, including felony corporal injury to a
spouse, assault with a deadly weapon, and abusing or endangering a child. He was
imprisoned for domestic violence in 2002 and 2007.
(4) Father abused alcohol and methamphetamine. He reportedly often got drunk;
when intoxicated, father was “crazy.”
(5) Father physically abused J.V., causing injuries to his face because of bad
grades in school. This abuse led to father’s conviction for willful child cruelty.
(6) When this case commenced, father was on parole for assault, which was likely
to be extended due to father’s abuse of J.V.
(7) At the onset of this case, the social worker had grave concerns for the child’s
safety because of father’s violent criminal history and anger management issues. Father
completed services but was still violent. The maternal aunt, who briefly cared for the
child, openly feared father.
(8) During the pendency of this dependency, in February 2014, father went into a
violent jealous rage, struck mother and threatened to kill her. He left visible injuries on
15
her face and chest. Mother thought that father may be using drugs. She contacted police
and obtained a restraining order.
(9) After the February 2014 incident, father stopped engaging in services and
missed visits with the child. Father became more hostile with the social worker. He was
a “no show” for random drug and alcohol screens.
(10) Around August 2014, father reportedly violated the restraining order by
breaking into mother’s home and sexually assaulting her for two hours while the child
slept. Father was incarcerated for burglary and rape.
(11) In the final report, the social worker stated that father failed to take
responsibility for his actions and demonstrated his violent and aggressive nature, even
with CFS’s close supervision of the case.
On January 12, 2015, the juvenile court terminated FR services and denied
visitations with the child. In making this determination, the court noted that father defied
a restraining court order to protect mother, and allegedly raped her for two hours with the
child in the same home. The court, in denying visitation, reiterated that father had failed
to rehabilitate himself from the reasons that gave rise to the child’s and his siblings’
dependency, as summarized ante. The court stated that father would “have to rehabilitate
himself somehow and make a case in front of a family law judge and show there has been
a substantial change in circumstances in order to grant visitation.”
Based on the above, we find that substantial evidence supports the juvenile court’s
implied finding of detriment. Therefore, we find no error in the court’s no-visit order.
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IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
KING
J.
MILLER
J.
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