In re S.H. CA2/4 ( 2013 )

Filed 12/11/13 In re S.H. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re S.H., a Person Coming Under the B245942
Juvenile Court Law.
___________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK57697)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.H. et al.,
Defendants and Appellants.
___________________________________
J.H.,
B248323
Petitioner,
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Real Party in Interest.
APPEAL and ORIGINAL PROCEEDINGS in mandate from orders of the
Superior Court of Los Angeles County, Marguerite Downing, Judge. Orders affirmed,
petition denied.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant E.H.
Catherine C. Czar, Law Office of Timothy Martella, Los Angeles Dependency
Lawyers, Inc., Rebecca Harkness and Thomas Hayes, under appointment by the Court of
Appeal, for Defendant, Appellant, and Petitioner J.H.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
William D. Thetford, Principal Deputy County Counsel for Plaintiff, Respondent, and
Real Party in Interest Los Angeles County Department of Children and Family Services.
No appearance for Respondent Superior Court of Los Angeles County.
______________________________
This opinion addresses two consolidated proceedings. E.H. (mother) and J.H.
(father) appeal from the juvenile court’s jurisdictional and dispositional orders declaring
their seventh child, S.H., a dependent child under Welfare and Institutions Code section
3001 and removing him from his parents’ custody. In a writ petition, father challenges
the juvenile court’s order terminating reunification services and setting a permanency
hearing under section 366.26 for the parents’ six older children. We conclude that the
juvenile court’s findings are supported by substantial evidence. We affirm the orders and
deny father’s petition.
FACTUAL AND PROCEDURAL SUMMARY
The seven children subject to these proceedings are parents’ daughter A.H. (born
in 2003) and her six brothers: Wi.H. (born in 2004), B.H. (born in 2006), J.H. (born in
2008), Wa.H. (born in 2009), E.H. (born in 2010), and S.H. (born in 2012). We
1
All statutory references are to the Welfare and Institutions Code.
2
previously reviewed the family’s involvement with the Department of Children and
Family Services (DCFS) in Jeffrey H. v. Superior Court (June 13, 2006, B189786
[nonpub. opn.]) and In re B.H. (July 31, 2009, B211691 [nonpub. opn.]).
Most recently, we recapitulated the family’s long dependency history in In re A.H.
(July 20, 2012, B236022 [nonpub. opn.]). As we explained there, in 1998, “mother’s son
from a prior marriage was subject to a dependency case in Orange County. Father, who
was mother’s companion at the time, was convicted of willful cruelty to the child, and
mother failed to reunite. In 2005, the juvenile court sustained a petition as to A.H. and
Wi.H. based on father’s earlier abuse of their half sibling. During the pendency of the
case, the parents abducted the children to Nevada. The case was closed in 2007 after the
parents complied with all court orders. In 2008, a petition was sustained as to the four
oldest children, based on the parents’ failure to treat B.H.’s anemia. We affirmed the
findings as to B.H. and reversed as to his siblings. The case was closed over DCFS’s
objection in January 2010.”
The current case began in 2011, when the juvenile court sustained a section 300
petition as to the six older children, based on allegations father gave A.H. a black eye by
hitting her with his fist, mother failed to protect her, and both parents regularly gave her
beer to drink. The children were placed with a family friend, mother was allowed to
move into the caregiver’s home, and father was given monitored visits. The parents were
ordered to receive reunification services, parenting education, and individual counseling;
in addition, father was ordered to undergo anger management therapy. In In re A.H., we
affirmed the juvenile court’s August 25, 2011 jurisdictional and dispositional order.
In October 2011, the caregiver requested that the children be removed from her
home because the parents had “become increasingly hostile,” and she feared for her own
and her family’s safety. The children were split up among three foster homes. In early
2012, the social worker assigned to the case obtained a restraining order against father,
who had posted prayers for the social worker’s death on YouTube and Facebook. Father
also had posted unfounded accusations that the foster parents sexually, physically, and
emotionally abused his children. Based on these postings, father’s volatile temper, and
3
evidence he was present during mother’s unmonitored visits, DCFS filed a section 388
petition, requesting that father be ordered to submit to a psychological evaluation, that his
visits be suspended, and that mother’s visits be monitored. The court ordered a
psychological evaluation and professionally monitored visits for father. Mother’s visits
also were to be monitored, but DCFS was directed to assess the Hope Gardens Family
Center, a homeless facility at which mother had lived since December 2011, for possible
liberalization of her visits and placing the children with her there.
In April 2012, a court-appointed evaluator found father to be cooperative and not
severely mentally ill, but “very likely” to have “a significant personality disorder, most
likely with angry and paranoid features” that would require long-term therapy with a
“seasoned professional.” In May 2012, mother left Hope Gardens and went to live with a
friend. Father’s residence, after he left the Union Rescue Mission, was unknown, but he
had been seen leaving mother’s home, and mother’s address was his only contact address.
The parents’ seventh child, S.H., was born in July 2012. The parents refused to
allow DCFS access to and information about the child without a warrant, refused to
attend a team decision making meeting, and refused to sign a voluntary family
maintenance contract with DCFS. The child was removed and a section 300 petition was
filed on his behalf. The parents were disruptive during the ensuing court proceedings and
had to be repeatedly excluded from the courtroom. On October 25, the court sustained
counts b-4, j-1, j-2, and j-3 of DCFS’s first amended petition filed on September 27. On
November 14, S.H. was declared a dependent of the court and removed from the parents.
The parents were ordered to undergo individual counseling, and granted monitored
visitation rights.
The parents appealed the October 25 and November 14 orders in case No.
B245942. DCFS cross-appealed the court’s refusal to allow DCFS to further amend its
first amended petition and the dismissal of additional counts. It has since abandoned the
cross-appeal.
The 18-month hearing in the case of the six older children, originally set for
November 2012, was not completed until March 2013. For the November hearing, the
4
social worker reported father had refused to receive any communication from DCFS, and
DCFS had no information about the parents’ participation in services. The parents’ visits
with all seven children were monitored. DCFS recommended that reunification services
be terminated.
In February 2013, the new social worker assigned to the case learned mother and
father were in individual counseling. Father’s therapist reported she had seen father six
times since the beginning of January. The sessions focused on father’s feelings about the
children’s removal, his anger triggers, and management of stressful situations. Mother’s
therapist reported mother had received weekly therapy since November 2012. On
March 5, 2013, the parents attended a team decision meeting, at which a safety plan was
created. The plan provided that the children would remain as currently placed, DCFS
would consider unmonitored visits, the parents would continue to participate in individual
counseling, and the parties would explore a family preservation plan. Father signed the
safety plan, but mother did not. The parents’ visits were liberalized to unmonitored and
were to take place at “the mother’s home.” Father immediately moved in with mother.
On March 8, 2013, 23 months after the removal of the six older children, the court
terminated reunification services, but did not return the children to the parents’ custody.
The court’s concerns were over father’s disruptive behavior through most of the case and
mother’s continued submissiveness to his control, which indicated the parents had not
made sufficient progress despite their recent attempts at compliance. Specifically, the
court pointed out that although mother was further along the path of reunification with
the children, she had not shown she could function independently of father. The court set
the matter for a permanency hearing but invited mother to file a section 388 petition if her
circumstances changed.
Father filed a writ petition from the March 8, 2013 order in case No. B248323.
Mother did not. We consolidated the parents’ appeal with father’s writ proceeding.
5
DISCUSSION
I
In the appeal, the parents challenge the dependency court’s jurisdictional and
dispositional findings with regard to their youngest child, S.H. These findings are
reviewed for substantial evidence. (In re E.B. (2010) 184 Cal. App. 4th 568, 574.) The
juvenile court’s determination will not be disturbed unless it exceeds the bounds of
reason. (Id. at p. 575.)
A. Jurisdiction
DCFS concedes that no substantial evidence supports count b-4, which was based
on allegations that the parents refused to allow DCFS access to S.H. without a warrant.
DCFS also concedes count j-2 should be stricken. It alleged father had a history of
alcohol abuse. The allegation was not found true with respect to S.H.’s older siblings,
and no other evidence in the record supports it. We do not consider these two counts any
further.
DCFS contends the remaining two counts, j-1 and j-3, were supported by
substantial evidence. These counts were based on the sustained allegations in the older
siblings’ open case, which we affirmed in In re A.H. Section 300, subdivision (j), allows
the juvenile court to assert jurisdiction over a minor and declare the minor a dependent
child of the court where “[t]he child’s sibling has been abused or neglected, . . . and there
is substantial risk that the child will be abused or neglected . . . .” The parents concede
they are estopped from relitigating the first prong, which is satisfied by the jurisdictional
findings in the older siblings’ case. (In re Joshua J. (1995) 39 Cal. App. 4th 984, 993.)
But they argue the second prong was not established because there were no recent
incidents of father’s violence directed at any of his children, and the parents had
complied with the case plan for S.H.’s siblings.
We review each parent’s claim separately. The parents’ appeal is from the
October 25 and November 14, 2012 orders as to S.H. Although the appeal has been
consolidated with father’s writ petition that challenges the March 8, 2013 order
terminating reunification services, we decline to consider evidence postdating the 2012
6
orders subject to the appeal. That evidence was not before the court at the time it made
the 2012 orders. (See In re Zeth S. (2003) 31 Cal. 4th 396, 407; In re Robert A. (2007)
147 Cal. App. 4th 982, 990.)
We also decline to consider DCFS’s last minute information filed on October 11,
2012, where the social worker reported receiving a referral that father had circumcised
S.H., causing deformation to the child’s penis. The record does not indicate that these
allegations were ever confirmed.
1. Father
Father focuses on the monitors’ positive evaluations of his visits with the children,
his two parenting courses and court-ordered psychological evaluation, and his
involvement in mental health therapy. The record indicates that, due to his belligerent
conduct in this case, father had not progressed past monitored visits with his children.
Additionally, because he refused to communicate with DCFS in October and November
2012, when the orders as to S.H. were made, there was no evidence father was engaged in
any mental health therapy even though the court-appointed evaluator had recommended
such therapy.
Father completed a four-hour online parenting course in October 2011.
Reluctantly and at the social worker’s insistence, he completed a 12-hour online
advanced parenting class in January 2012. He attended individual therapy, parenting
classes and anger management classes while residing at the Union Rescue Mission
between October 2011 and February 2012. There was no evidence he completed these
programs, and his therapist indicated she would recommend that he receive services
through a forensic psychologist, as his case appeared to be “very complicated.” That
father did not make substantive progress in these programs is evidenced by the fact that
in early 2012 father showed very little concern about his children’s privacy or
psychological well-being. He often lost his temper when criticized by the social worker
during visitations. He also made scandalous, and apparently unfounded, public
allegations that his daughter was sexually abused at her foster home and that one of her
brothers was being forced to sexually abuse her.
7
The evaluator’s conclusion in May 2012 that father did not represent a significant
danger was based on the premise that father had no known history of assaults and
aggression. That premise was incorrect in light of father’s 1998 conviction of child
cruelty and the sustained allegation in the siblings’ case that he struck his daughter with a
fist, giving her a black eye. With the caveat that he could not diagnose father based on
one meeting, the evaluator nevertheless ventured that father was very likely to have a
personality disorder with angry and paranoid features that would require long-term
therapy with a seasoned professional. There is no evidence that by the fall of 2012 father
had received any such therapy. The evidence indicates rather that he refused to
communicate with DCFS, to the detriment of his own position in this case.
2. Mother
A recurrent sustained allegation against mother throughout the family’s
dependency history has been her failure to protect her children from father’s physical
abuse. To the extent she argues father did not pose a danger to S.H. because he was
complying with the case plan in the siblings’ case, mother’s argument is coextensive with
father’s and fails for the same reasons.
With regard to her own compliance, the record indicates that mother completed
two online parenting classes and was enrolled in individual counseling between
November 2011 and May 2012 at the latest, while she lived at Union Rescue Mission and
Hope Gardens. A letter from Hope Gardens dated March 1, 2012, stated she had attended
six sessions and demonstrated a positive and purposeful attitude. Mother left Hope
Gardens in May 2012 and did not resume therapy until November 2012, after S.H.’s
jurisdictional hearing. At the time of that hearing, there was no evidence that mother had
successfully completed therapy and was in compliance with her case plan.
Mother’s unmonitored visits with her children were conditioned on her remaining
in Hope Gardens because it was a locked facility to which father did not have access.
Mother left the facility allegedly because she was required to pay minimal rent if she
lived there without her children. Mother claimed she could not to take advantage of
payment options based on General Relief distributions because she had renounced her
8
United States citizenship. When mother left the facility, her visits became monitored.
The social worker liberalized visitation in July 2012, but almost immediately DCFS
received reports that father was seen at mother’s residence when children were dropped
off for unmonitored visitation. As a result, in September 2012, the court ordered that
both parents’ visits be monitored. Thus, at the time the court made the orders as to S.H.,
mother had lost her right to have unmonitored visits with his siblings. In taking
jurisdiction over S.H. and removing him from mother’s custody, the court specifically
noted that mother had failed to remain independent of father.
Mother argues DCFS bore the burden of proving the jurisdictional issues by
preponderance of the evidence. Whether the parents were in compliance with their case
plan in the siblings’ case was directly relevant to that issue since the purpose of the plan
was to overcome the problems that led to the siblings’ removal in the first place. (Blanca
P. v. Superior Court (1996) 45 Cal. App. 4th 1738, 1748.) A parent’s compliance with a
case plan is measured by the regularity with which the parent participates in treatment,
the parent’s efforts or progress, and the extent to which the parent ‘“cooperated and
availed himself or herself of services provided.”’ (Ibid., citing § 366.22, subd. (a).) The
parents’ erratic behavior, refusal to communicate with DCFS, and irregular participation
in treatment programs was evidence that return of S.H.’s siblings to their custody would
be detrimental. (§ 366.21, subd. (e).) Under the circumstances, the court acted
reasonably in the exercise of jurisdiction over S.H.
B. Disposition
The parents argue that substantial evidence did not support S.H.’s removal from
their custody. “Even though children may be dependents of the juvenile court, they shall
not be removed from the home in which they are residing at the time of the petition
unless there is clear and convincing evidence of a substantial danger to the child’s
physical health, safety, protection, or physical or emotional well-being and there are no
‘reasonable means’ by which the child can be protected without removal. [Citation.]”
(In re Henry V. (2004) 119 Cal. App. 4th 522, 528, citing § 361, subd. (c).) The agency’s
9
burden of proof at the dispositional stage is higher than at the jurisdictional stage if the
minor is to be removed from the parents’ custody. (Id. at pp. 528–529.)
In its ruling on disposition, the court noted that whether father was a custodial
parent was unclear. We need not decide this issue since father supported an order placing
S.H. with mother and did not argue that the child should be placed with him. We note,
however, that if father was in fact living with mother at the time of the disposition order,
mother would not have been in compliance with her case plan. The court repeatedly
conditioned return of S.H.’s siblings to mother on her not living with father because of
her inability to control him and her tendency to follow his erratic behavior.
Mother argues the court improperly removed S.H. from her custody in order to
pressure mother to comply with DCFS supervision. She relies on In re Henry V., supra,
119 Cal. App. 4th 522. In that case, a child was removed from his home after a single
incident of burn marks on his behind. The appellate court reversed, reasoning there was
“ample evidence” that in-home bonding services and supervision could have been
provided in the family home, and the mother had fully cooperated. (Id. at p. 529.) In that
context, the court noted that the “mother’s fundamental right to the custody of her child is
not a bargaining chip” to secure her future cooperation. (Id. at p. 530.) Mother also
relies on In re Steve W. (1990) 217 Cal. App. 3d 10. There, a court order removing a child
from his mother’s custody was reversed because there was no evidence the mother would
allow the child’s abusive father access to the child or that she would not comply with the
court’s orders. (Id. at pp. 22–23.)
Neither case involves parents who are non-compliant with an already existing case
plan. At the time of S.H.’s removal, there was ample evidence that mother could not be
trusted to comply with the court’s orders or to stay away from father. The parents’
contentious relationship with DCFS also made it unlikely that in-home services were an
option. It would have been illogical for the court to keep S.H. with the parents after
finding the parents had not resolved the issues that required the removal of S.H.’s older
siblings.
10
The court’s findings were supported by substantial evidence and its removal of
S.H. was within the bounds of reason.
II
In his writ petition, father argues that at the 18-month review hearing on March 8,
2013, the court should have returned the six older children to him.
At an 18-month review hearing, a child must be returned to the parents unless the
return would be detrimental to the child. (Blanca P. v. Superior Court, supra, 45
Cal.App.4th at p. 1748, citing § 366.22.) In deciding whether to return the child, the
court must consider each parent’s compliance with the case plan, participation in
treatment programs, effort and progress, cooperation and availment of services. (Ibid.)
We review the record for substantial evidence whether a child would be at substantial risk
of detriment if returned to the parent’s custody. (In re Yvonne W. (2008) 165
Cal. App. 4th 1394, 1400–1401.)
As we have discussed, in November 2012 father was not in compliance with the
case plan. The question is whether his circumstances had sufficiently changed by
March 8, 2013. Father had been in individual counseling with a therapist since January
2013. He finally was addressing his feelings about his children’s removal and his anger
triggers, as well as learning how to manage his emotions and how to react in stressful
situations. We disagree with DCFS’s suggestion that father had the burden of
establishing the therapist’s qualifications since the social worker who spoke with the
therapist could easily have inquired about her credentials. But we agree that the record
does not indicate what substantive progress father had made in therapy. The court was
not required to return the children to father without some showing of such progress.
Father had just had his first unmonitored visit two days before the March 8, 2013
hearing, as part of a safety plan he signed at a team decision meeting with DCFS.
DCFS’s willingness to liberalize father’s visits after months, if not years, of conflict
shows its recognition that father had made some progress in the right direction.
However, the court was properly concerned that father unreasonably mistook the safety
plan, which provided for unmonitored visits at “the mother’s home,” as permission to
11
move in with mother. Moreover, father’s decision to cooperate with DCFS was new, as
was his resolve to sit through a court hearing without causing a disturbance. We disagree
with father’s argument that his long history of disruptive, aggressive, and at times
irrational behavior was irrelevant just because it was directed at the court and DCFS,
rather than at the children. It was not unreasonable for the court to refuse to return the
children to his custody when deputy sheriffs were still present in the courtroom because
father was considered a safety risk.
Father may file a section 388 petition if his circumstances change.
DISPOSITION
The orders are affirmed. Father’s petition is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.
12