In re K.P. CA4/2 ( 2014 )

Filed 8/20/14 In re K.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 K.P., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E057591
Plaintiff and Respondent, (Super.Ct.No. RIJ1200260)
v. OPINION
T.P.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert and Carole A. Nunes
Fong, Deputy County Counsel, for Plaintiff and Respondent.
1
I. INTRODUCTION
In this juvenile dependency case, respondent Riverside County Department of
Public Social Services (DPSS), removed K.P. from her parents’ home following a
domestic violence incident. DPSS filed, and the trial court sustained, a juvenile
dependency petition under Welfare and Institutions Code section 300.1 K.P. was placed
in foster care. At a six-month review hearing, the court found that returning K.P. to the
parents’ custody would create a substantial risk of detriment to K.P. and ordered her to
remain in DPSS’s custody, care, and control. Appellant, T.P. (Father), appealed this
ruling.
Thereafter, K.P. was permitted to have an extended visit with her paternal
grandmother. After the court terminated that visit and ordered K.P. be returned to
DPSS’s custody, Father appealed.2
For the reasons set forth below, we reject Father’s arguments and affirm the
court’s orders.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
Father filed a third notice of appeal with respect to an order made on January 29,
2013, that he complete a psychological evaluation. This court assigned the same case
number to the three appeals. In his appellate briefs, Father does not present any argument
with respect to his appeal from the January 29, 2013, order. We therefore consider that
appeal abandoned. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; Wurzl v.
Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)
In addition to the appeals addressed in this opinion, Father has filed notices of
appeal of subsequent rulings in the underlying case. We will address those appeals in
separate opinions.
2
II. FACTUAL AND PROCEDURAL BACKGROUND3
A. Detention, Jurisdiction, and Disposition (October 2011 – April 2012)
The mother gave birth to K.P. in October 2011. At that time, the mother was
taking methadone for treatment of a heroin addition. K.P. was born addicted to
methadone and hospitalized for the first four months of her life.
On February 12, 2012, DPSS received a referral concerning K.P. because of
concerns about the mother’s ability to care for K.P. due to the mother’s history of heroin
use. It was also reported that Father seemed to have poor impulse control and was unable
to visit K.P. in the hospital due to a scuffle with hospital security.
K.P. was discharged from the hospital on February 20, 2012. The mother and K.P.
moved in with Father at the paternal grandmother’s house. The house had an attached
unit, which the paternal grandmother rented to her nephew and his fiancée. The renters
could access the paternal grandmother’s house through an internal doorway.
3 DPSS requested we take judicial notice of our file in a writ proceeding
concerning this case and to augment the record in this case with the file from the writ
proceeding. Father opposed the request based on the rule that appellate courts review
“‘the correctness of a judgment as of the time of its rendition, upon a record of matters
which were before the trial court for its consideration.’ [Citation.]” (In re Zeth S. (2003)
31 Cal.4th 396, 405.) This rule applies in dependency proceedings. (Id. at p. 405, 411-
412.) We agree with Father. To the extent the facts disclosed by the record in the writ
proceeding were not before the trial court when it made the orders that are the subjects of
this appeal, they are not pertinent to our review. Accordingly, we deny the request for
judicial notice.
3
On March 2, 2012, DPSS received a second referral based on concerns that the
mother was an active heroin user, homeless, had no income, no family support, and tried
to sell baby supplies for cash. In addition, Father reportedly had violent anger issues.
During its investigation, DPSS received a third referral on March 12, 2012, based
upon a domestic violence incident that day between the mother and Father in which each
inflicted injuries on the other. The parents were arrested and K.P. was taken into
protective custody and placed with a foster family.
According to Father, the mother was the aggressor and had threatened him with a
meat fork. The mother, on the other hand, said that Father yelled at her and pushed her as
she held K.P. in her arms. Father also pushed her on the bed and against a window, and
tried to push her down the stairs. He punched her in her mouth, causing a laceration.
Only then did the mother begin to fight back. Father chased her around the house and
grabbed and choked her.
The parents told the social worker about a prior domestic violence incident that
took place about one year earlier. According to Father, the mother attacked him and beat
him up; he did not hit the mother. According to the mother, Father head-butted her
during this incident and sat on her pelvis to prevent her from leaving the home. Father
was arrested, but the charges were later dismissed.
K.P.’s paternal grandmother told the social worker that the mother and Father had
a “volatile,” “off and on” relationship over the preceding three years. According to the
paternal grandmother, the mother was always the aggressor and Father merely tried to
4
restrain the mother from hitting him. She said the mother was easily agitated and yelled
constantly at Father and blamed him for everything. She described Father as “‘a good
father who takes care of [K.P.]’”
On March 14 2012, DPSS filed a petition concerning K.P. under section 300,
subdivisions (b) and (g). The petition was based on allegations of domestic violence and
child endangerment, the parents’ use of controlled substances, the failure to benefit from
services, Father’s prior arrest on domestic violence and drug charges, and the parents’
current incarceration.
A detention hearing was held on March 15, 2012. K.P. was ordered detained from
the parents. Supervised visits between K.P. and the parents were ordered to take place at
least twice each week. The court authorized the paternal grandmother to be present at
Father’s visits.
On March 21, 2012, Father told a social worker that he wanted the paternal
grandmother and a maternal aunt to be considered for placement. According to the social
worker, the paternal grandmother said she was not able to care for K.P. at that time due to
her limited mobility from recent hip surgery. The social worker also reported that there
were no other paternal relatives available to care for K.P.
A contested jurisdictional/dispositional hearing was held on April 6, 2012. DPSS
introduced the social worker’s detention and jurisdictional/dispositional reports. The
parents were present and represented by separate counsel. Each of their attorneys stated
they had no objection to DPSS’s evidence regarding jurisdiction and no affirmative
5
evidence. DPSS withdrew the allegations regarding Father’s use of controlled substances
and the parents’ incarceration. The court found the remaining allegations true. K.P. was
declared a dependent of the court and removed from the parents’ physical custody.
Supervised visits between the parents and K.P. were to continue at least twice per week;
however, the court also authorized unmonitored day, overnight, and weekend visits at the
discretion of DPSS.
DPSS was ordered to provide, and the parents ordered to participate in,
reunification services. The mother’s and Father’s case plans called for participation in
domestic violence/anger management programs and counseling. In addition, the mother
was required to participate in a substance abuse program and random drug testing.
B. Six-month Review Period (April 2012 – November 2012)
In May 2012, the social worker referred the paternal grandmother to DPSS’s
relative assessment unit (RAU) to evaluate the possibility of placement with her. A home
evaluation was conducted on May 21, 2012. The RAU agent informed the paternal
grandmother that Father could not be living in the home and that the adults in the home
needed to be live scanned. Father promptly moved out of the house and lived with
friends.
The mother completed detoxification treatment in May 2012. However, shortly
afterward she tested positive for opiates. She subsequently entered into an inpatient
substance abuse program, but was discharged after missing curfew because she was with
6
her family as her aunt was dying. In July, she enrolled in an outpatient program and
admitted recent use of heroin. She tested positive for opiates in early August 2012.
In June 2012, Father enrolled in a domestic violence program that included anger
management groups and individual counseling. His anger management group counselor
reported that Father “had good groups and participated in their discussions.” His
individual therapist recommended that Father undergo a psychological evaluation
because of a possible “Thought Disorder.” Shortly afterward, Father rescinded his
authorization for the therapist to disclose information to the social worker. Father
subsequently stopped attending classes and group counseling, and terminated his
individual counseling sessions before completing them.
In August 2012, DPSS suspended Father’s visits because of his “ongoing erratic
behavioral issues that include threatening staff, provoking staff to hit him while holding
the child in front of himself, lack of self-control and verbally abusing staff.” Although he
interacted well with K.P., the social worker reported that “his behavior [during visits] has
deteriorated to the point where he is constantly yelling, talking to himself loudly, and
making threats against the individual supervising the visits and [DPSS].” At times, he
“does not appear to be aware of his own actions.”
According to the social worker, Father’s “main issue” has been K.P.’s diaper rash
and DPSS’s failure to address the issue. Father told the social worker he had prescription
medication for the rash and that the foster parent was not using it. According to DPSS,
K.P. had what appeared to be a “mild diaper rash” that was diagnosed as an infection
7
contracted in utero. A forensic medical examination indicated nothing abnormal and the
parents were advised that K.P. might outgrow the rash. Father, however, believed the
rash was due to DPSS’s neglect. Father also expressed concern that K.P. was throwing
up because she was not being fed a certain, special formula. The social worker reported
that “doctors have told the caregiver otherwise.”
Contrary to instructions from social workers, Father took pictures of K.P.’s genital
area during visits and, when told to stop, said “he could do whatever he needed to
document any neglect of his daughter.” He accused the social workers of bias and said
they would “pay by losing [their] jobs.” He also spoke to 10-month-old K.P. in the
presence of DPSS staff “about how they were going to get millions” due to DPSS’s
neglect. When he was informed that the visit would be terminated due to his “continued
irrational and volatile behavior,” Father told the social worker he had not “‘seen hostile
yet,’” argued loudly, and said “this ‘was no threat, it’s a promise.’”
When a visit on August 22, 2012, was terminated because Father continued to take
pictures of K.P.’s “bottom,” Father became irate and spent the last 10 minutes of the visit
“very upset, agitated, and speaking loudly.” At one point, Father reportedly held up K.P.
in front of himself while attempting to provoke the social worker to hit him. After the
visit, he told DPSS staff that he was going to get them fired because of their unethical
treatment and for “stealing his daughter.” He said that the DPSS office building would
not be there in two and one-half months, said he wanted his uncle, an arson investigator,
to come to the office, and, as he was leaving, told DPSS staff “to have ‘sweet dreams.’”
8
A week later, near the end of the visit on August 29, 2012, Father began to take
pictures of K.P.’s private area. A DPSS staff member asked Father to stop. Father
continued taking pictures. He then called 911 and, yelling into the telephone, made
allegations of abuse and neglect while K.P. cried uncontrollably. Holding K.P. in his
arms, Father refused to return her to DPSS staff. He eventually turned K.P. over to a
police officer, who handed the child to DPSS staff. Father later explained that he did not
return K.P. to DPSS staff because they “were not trustworthy” and “didn’t do their jobs
for months in taking care of her.”
The next day, August 30, 2012, DPSS applied for an order to terminate Father’s
visits and requested a psychological evaluation of Father. At the hearing on the
application, Father testified that he had never been hostile or agitated during his visits,
and never threatened or acted inappropriately towards DPSS staff. He said he was
concerned about K.P.’s diaper rash and had been attempting, for more than three months,
to bring that concern to DPSS’s attention. In addition, he described “unexplainable”
injuries, such as burn marks on K.P.’s triceps and skin that had been “clipped” and
hanging off one of her fingers. He said he had a videotape showing K.P. with a runny
nose, coughing, and having trouble breathing. The caregivers, he asserted, have not
properly used a prescription cream he bought for K.P.’s diaper rash. He further stated he
did not need a psychological evaluation; he was “crazy about [his] daughter,” he
explained, but “not crazy.”
9
Following the hearing, the court ordered that Father’s visits be reduced to one 30-
minute visit each week. The court also ordered Father to undergo a psychological
evaluation.
Father subsequently refused the psychological evaluation because he believed it
was illegal. At one hearing, Father explained that he did not submit to a psychological
evaluation “[b]ecause they haven’t held up their side of the deal”; specifically, social
workers “haven’t provided any kind of efficient service as far as protecting a child” and
“neglected my child beyond belief.”
Two weeks after the court’s ruling to reduce Father’s visits, Father filed a request
to change court order pursuant to section 388. Specifically, Father requested to have K.P.
placed with him and to terminate the court’s jurisdiction. He asserted that K.P. had been
neglected while in foster care and that placement with him was in K.P.’s best interest. In
a letter attached to the petition, Father stated that K.P. was taken from him illegally, and
accused social workers of defamation, of lying and falsifying reports, and of “holding my
baby girl captive, for financial gain.” The court ordered a hearing on the petition to
coincide with the six-month review hearing.
In September 2012, the relative assessment case concerning the paternal
grandmother was closed because the renters of the unit adjoining her house did not return
paperwork to obtain a criminal history exemption in a timely manner. Although our
record is not clear, it appears that the criminal history consisted of unpaid traffic tickets.
Shortly afterward, the paternal grandmother boarded up the doorway that had allowed the
10
renters to access the main unit of the house. She then requested that the relative
assessment case be reopened.
The social worker decided not to reopen the relative assessment case because he
believed that placing K.P. with the paternal grandmother would give Father “free access”
to K.P. and “be equal to simply returning the child to the father.” The paternal
grandmother was, in the social worker’s view, colluding with Father “to have the child
placed in [Father’s] care and control.” The social worker also believed the paternal
grandmother would “be unable to protect [K.P.] from the volatile behaviors of the father”
and that K.P. would not be safe in her home.
In a report prepared for the six-month review hearing, DPSS recommended that
reunification services be terminated and the court set a hearing to be held pursuant to
section 366.26. According to the social worker, the mother continued to use heroin and
Father had been “extremely volatile and unstable” and refused to follow through with
services. DPSS also had “concerns regarding [Father’s] mental health that [he] flat out
refuses to acknowledge or address.”
At the outset of the six-month review hearing, Father requested a Marsden4
hearing, which the court granted. Following the hearing, Father was appointed new
counsel. At Father’s request, the court ordered that Father and K.P. have a supervised
visit on their mutual birthday. The review hearing was continued.
4 People v. Marsden (1970) 2 Cal.3d 118.
11
Three days later, on October 12, 2012, DPSS filed an application to set aside the
order for the supervised birthday visit between Father and K.P. The application was
based, in part, on the argument that Father continued to be “abrasive, aggressive,
disrespectful, and erratic to all involved in this case.” In the social worker’s view, Father
was “dangerous due to his behavior which has included veiled threats,” and was a “flight
risk.” DPSS warned that if the visit went forward, it “would be unable to guarantee the
safety of both the child and [DPSS] staff.”
The same day, Father filed a second section 388 petition. He again sought an
order returning K.P. to his care. The petition was supported by a letter written by Father
substantially similar to the one attached to his earlier petition, as well as by letters written
by certain relatives, neighbors, and a “Certified Life Coach.” The accompanying letters
included opinions that Father was not an angry person and would “never neglect a child,”
he was “a supportive father” who protected K.P. and put “her well-being above
everything else,” and, although he “can be aggressive at times,” his aggression “would
never be directed toward a child.” The paternal grandmother’s renters stated that they
were willing and able to care for K.P. at the time she was removed from the home.
Following a hearing held on October 18, 2012, the court granted DPSS’s request
to cancel the birthday visit scheduled for October 20, 2012, but scheduled a visit to take
place later that day (October 18) and a “make up birthday visit” on October 22, 2012.
The court also ordered that the paternal grandmother be allowed to visit K.P. during
Father’s visits. The same day, paternal grandmother filed a section 388 petition and
12
Father filed his third section 388 petition. Paternal grandmother requested that K.P. be
placed with her. Father requested that the order reducing his visits be reconsidered. The
court ordered a hearing on paternal grandmother’s section 388 petition and Father’s three
section 388 petitions to coincide with the rescheduled review hearing.
The combined hearing took place over three days in November 2012. The social
worker, Father, and the paternal grandmother testified. The social worker testified that
the mother had not completed her substance abuse program and had only recently begun
to take “her services real seriously.” The mother’s counsel elicited from the social
worker that the mother’s outpatient program counselor had informed DPSS that the
mother was an active and willing participant, “pursuing recovery” and “working towards
[her] treatment plan goals”; the mother had housing and was employed full time as a
nurse; she had visited K.P. consistently and the visits had gone well; and that she and
K.P. showed affection toward each other and shared a child/parent bond.
Regarding Father, the social worker testified about Father’s behavior during visits
and how they worsened over time, Father’s lack of compliance with his case plan, and
Father’s failure to undergo the court-ordered psychological evaluation.
Regarding placement with the paternal grandmother, the social worker explained
that even if the RAU approved the paternal grandmother for placement, DPSS would
“probably not” have placed K.P. with the paternal grandmother because of Father’s
behaviors and the concern that the paternal grandmother would allow Father to have
access to K.P. and fail to protect K.P.
13
The paternal grandmother testified that, contrary to DPSS reports, she had asked
that K.P. remain in her home since the initial detention and could have provided for her.
Although she had had recent hip surgery, there were other adults in the house who could
help her if necessary. When she was informed that the relative assessment was denied
because of her renters’ failure to clear up traffic tickets, she boarded up the doorway
connecting the house from the rental unit and asked to be reassessed. The social worker,
however, never responded to her request. She insisted that she would abide by any order
the court made regarding placement with her and that if Father came to the home when
not permitted she would call DPSS or the “authorities.”
Father testified to his concerns about K.P.’s persistent diaper rash and other ways
in which he perceived K.P. was being neglected while in DPSS’s custody. He described
a photograph showing, in his words, “a chunk of flesh missing off of my daughter’s rear
end.” He said he attended most, but not all, of the programs and counseling sessions
called for in his case plan, and did not undergo a psychological evaluation. K.P.
recognized him as her daddy and reached out for him at visits; he loved her and had a
bond with her.
When the court inquired of Father about participating in a psychological
evaluation, he initially indicated that he would not do so if the psychologist was chosen
or paid for by DPSS. After a discussion with his counsel, he said he would participate in
a psychological evaluation by a court-selected psychologist. When asked about
14
participating in court-ordered services, however, Father was equivocal and expressed his
belief that counselors chosen by DPSS would be biased.
The parents (through counsel) argued in favor of granting the section 388 petitions
and against DPSS’s recommendation to terminate services; DPSS sought the denial of the
section 388 petitions and argued in favor of terminating services. K.P.’s counsel did not
take a position as to continuing services for the parents. However, based upon the
evidence of K.P.’s diaper rash, K.P.’s counsel expressed strong concern for K.P.’s care in
DPSS’s custody and sympathetic understanding for Father’s complaints and frustration.
On November 15, 2012, the court denied Father’s section 388 petitions based on a
failure to show either changed circumstances or that the requested changes would be in
K.P.’s best interest. The court also denied the paternal grandmother’s section 388
petition on the ground that DPSS did not abuse its discretion in refusing to place K.P.
with the paternal grandmother. The court added, however, that the paternal grandmother
“seems like a very nice lady who loves her grandchild very much” and the “Court has no
objection to [DPSS] placing [K.P.] with the grandmother should [DPSS] believe that to
be appropriate.”
The court found that the mother’s and Father’s progress toward alleviating or
mitigating the causes necessitating placement had been minimal due to the failure to
make substantive progress in their respective case plans. The court further found that
returning K.P. to the parents’ custody would create a substantial risk of detriment to
K.P.’s safety, protection, or physical or emotional well-being. However, the court
15
rejected DPSS’s recommendation to terminate services and ordered that additional
services be provided to the parents. Father’s “regular visitation” was reinstated. The
court further ordered Father to submit to a psychological evaluation by a specified doctor
and that the mother submit to random drug testing.
Father filed a notice of appeal from the orders made on November 15, 2012.
C. Post-six-month Review Period
The day after the November hearing, the social worker submitted a new referral to
the RAU regarding the paternal grandmother. One month later, the RAU approved of the
paternal grandmother.
One month after the November hearing, the social worker reported that Father had
not yet scheduled the psychological evaluation nor begun his anger management program
and counseling.
The mother completed the counseling portion of her case plan, but was discharged
from her outpatient substance abuse program without completing it. The program
counselor suspected the mother was using drugs and reported that the mother’s
participation in the program was “minimal.” The counselor also stated that the mother
was “consistently nodding out during group discussions” and refused to state her sobriety
date when asked. The counselor referred the mother “to inpatient treatment with help to
stop using opiates.” The social worker reported that the mother failed to drug test on one
occasion and expressed concern about her sobriety. The social worker requested that the
court order the mother to submit to a hair follicle test.
16
One-hour joint visits by the parents took place twice each week. The parents were
appropriate and compliant. The social worker reported that the joint visits were
beneficial to all three and K.P. enjoyed them more than separate visits. The social worker
added: “It is clear that [K.P.] has a loving bond with both parents and they with her.”
The social worker concluded that “both parents are having regular visits that are
going very well . . . [and] are participating in their case plans and appear to be serious
about reunifying with [K.P.]”
At a hearing held on December 20, 2012, the court ordered that K.P. have an
extended visit with the paternal grandmother and authorized Father to reside in the
paternal grandmother’s house. Father was ordered “to continue to follow all the rules,
comply with DPSS and complete the psychological evaluation.” The mother was not
permitted to be at the paternal grandmother’s house and visits between her and K.P. were
to take place at DPSS’s office.
Soon after K.P. began her extended visit with the paternal grandmother, DPSS
received a report that the mother was residing in the home and was “‘stoned out [of] her
mind.’” The mother was not found at the home during unannounced welfare checks on
January 2 and 3, 2013. However, the maternal grandmother had moved into the paternal
grandmother’s home. K.P. appeared “happy and well adjusted” in the paternal
grandmother’s home and “enjoy[ed] the attention given to her from her grandmothers.”
The paternal grandmother reported that K.P. had not had a runny nose or diaper rash
since returning to her home.
17
In early January 2013, the maternal grandmother spoke with the social worker and
told him that the paternal grandmother’s house was an unsafe environment for K.P. She
said that Father became irate towards the paternal grandmother after learning that the
paternal grandmother had signed a DPSS “safety plan.” Although this safety plan is not
part of our record, it apparently includes provisions preventing Father from being alone
with K.P. and precluding the mother’s presence in the home. Father demanded that the
paternal grandmother call DPSS and retract her signature on the safety plan. If she did
not, he told the paternal grandmother he would report that she rents her property to heroin
addicts.
The maternal grandmother reported other incidents of Father yelling at the mother
and the maternal grandmother. The maternal grandmother said she suspected Father used
drugs—perhaps “speed” and heroin—and believed he was “extremely paranoid as he
demands that all windows, blinds, and doors to be closed at all time[s]”; he also “would
not allow the grandmother[s] to take [K.P.] into the back yard for air.” Father also said
he is going to put up “No Trespassing” signs and shoot people who come on his property.
The maternal grandmother described a small closet in the house in which Father had
hidden to avoid being found in the home.
The maternal grandmother said the mother “is a straight up addict” and heard her
telling Father how she can buy shampoo that will allow her to pass a hair follicle test.
The social worker reported that the mother failed to follow through with the required test.
18
In light of this information, DPSS applied ex parte for a warrant to remove K.P.
from the paternal grandmother’s home and an order terminating services as to the mother.
A hearing was set at Father’s counsel’s request. The court directed the parents, the
paternal grandmother, and K.P. be present.
At the time for the hearing, the paternal grandmother dropped Father off at court,
then left with K.P. While the court waited for the paternal grandmother and K.P. to
return, Father left the courthouse. Two hours after the hearing was set to begin, the
paternal grandmother returned to court without K.P. or Father. The paternal grandmother
said that Father was with K.P. at a gas station getting a flat tire fixed. The court
expressed skepticism about the paternal grandmother’s explanation for her and Father’s
absence, and issued an arrest warrant for Father and a protective custody warrant for K.P.
Eventually, Father was contacted by telephone from the courtroom and the
conversation was transcribed by the court reporter. When the mother told Father to
“come back, please,” Father told the mother: “I’m not going to. Fuck those mother-
fuckers. For nine months my family suffered.” He indicated he was on his way to “the
60” freeway.
The court told Father: “I need you to go back to the Court house. And I need you
to come back now with your child. You are just making things worse.” Father
responded: “I don’t see how this would be in the best interest of my daughter to be in the
hands of people who are evil, malicious, vindictive, driven by greed and money; people
that have no idea how to take care of a child . . . .” Among other complaints Father had
19
regarding DPSS, he described the social worker as “an absolute complete false, lying,
vindictive, malicious, revengeful—” before being cut off by the court. Our record of the
conversation is marked at several points by the court reporter’s references to Father’s
“[i]naudible yelling.” When the court informed Father that it would issue an order for his
arrest if he did not come back to the court with K.P., Father said he would “turn around
right now.”
When Father arrived in court, the court recalled and quashed the arrest and
protective custody warrants. After hearing argument, the court told Father: “I am very
disturbed by what unfolded here today. It appears to the Court that both you . . . and your
mother conspired to attempt to abduct the child from the jurisdiction.” The court then
terminated K.P.’s extended visit with the paternal grandmother and ordered K.P. be
placed in DPSS’s custody. A hearing regarding the psychological evaluation was set for
January 29, 2012. Father filed a notice of appeal regarding these orders.
III. DISCUSSION
A. Father’s Argument Concerning the Failure to Advise Him of His Rights at the
Jurisdictional Hearing
Father asserts that his right to due process was violated because he was not
informed of certain rights at the jurisdictional hearing. These rights are set forth in rule
5.682 of the California Rules of Court and include: “(1) The right to a hearing by the
court on the issues raised by the petition; [¶] (2) The right to assert any privilege against
self-incrimination; [¶] (3) The right to confront and to cross-examine all witnesses
20
called to testify; [and] [¶] (4) The right to use the process of the court to compel
attendance of witnesses on behalf of the parent . . . .” (Cal. Rules of Court, rule
5.682(b).) According to the rule, “the court must advise the parent” of these rights as
well as read the petition to those present at the jurisdictional hearing. (Cal. Rules of
Court, rule 5.682(a), (b).) Moreover, he asserts that these rights could only be waived by
him personally, not through counsel.
DPSS contends that Father has forfeited this argument by failing to timely
challenge the court’s omission. The argument is sound. In a juvenile dependency case
the appealable judgment is the dispositional order. (In re S.B. (2009) 46 Cal.4th 529,
532.) Under section 395, that “judgment” “may be appealed in the same manner as any
final judgment, and any subsequent order may be appealed as an order after judgment.”
(§ 395, subd. (a)(1).) A notice of appeal must be filed within 60 days after the court
makes the appealable order. (Cal. Rules of Court, rule 8.406(a)(1).)
In this case, the jurisdictional hearing was held, and the appealable dispositional
orders were made, on April 6, 2012. Father’s first notice of appeal was filed in
November 2012, long after the time for challenging the jurisdictional and dispositional
determinations. “‘[A]n unappealed disposition or postdisposition order is final and
binding and may not be attacked on an appeal from a later appealable order.’ [Citation.]
An appeal from the most recent order in a dependency matter may not challenge earlier
orders for which the time for filing an appeal has passed. [Citation.]” (Sara M. v.
Superior Court (2005) 36 Cal.4th 998, 1018.) Therefore, Father’s challenges to errors
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made at or prior to the dispositional order in this case have been forfeited by failing to
file a timely appeal.
Nor does Father present any meaningful argument that that forfeiture rule should
not apply in this case. Although he asserts in his opening brief that “[t]he importance of
due process overrides the ordinary application of the forfeiture rule,” he does not go on to
explain why the forfeiture rule should be overridden in this case. Indeed, in his reply
brief, Father dismisses DPSS’s forfeiture argument as misplaced, stating that his
argument “was not a challenge to the initial finding and removal of [K.P.], but to the
subsequent finding of detriment at the six-month hearing.” He points to his statement in
his opening brief that “[a]lthough the initial dispositional order is not the subject of this
appeal, the section 366.21, subdivision (e) finding at the November 15 hearing is. . . .
Accordingly, Father may assert the insufficiency of the evidence showing detriment at
that proceeding.” As we understand Father’s argument, it appears he is not asserting the
failure to give the required advisements at the jurisdictional hearing as grounds for
reversal, but rather that the subsequent detriment findings cannot be supported by the
court’s jurisdictional findings or evidence of Father’s conduct prior to the
jurisdictional/dispositional hearing.5
5 Father’s briefs are, however, ambiguous and seemingly contradictory on this
point. On the one hand, he insists he is challenging only the orders from which he has
timely appealed; on the other hand, he also argues that the failure to give the advisements
at the jurisdictional hearing deprived him of his constitutional right to due process and
requires reversal unless harmless beyond a reasonable doubt. To the extent he is making
the latter argument, we reject it as untimely.
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The problem with Father’s argument is that it incorrectly assumes that the court
based its November 15, 2012, rulings upon Father’s conduct prior to the jurisdictional
hearing. Father devotes a substantial portion of his briefs on arguments that the evidence
supporting the initial findings was weak and insufficient, but does not refer us to any
point in the record that suggests that the court based its subsequent detriment finding on
the evidence presented at the earlier hearing or its jurisdictional findings. Furthermore,
as we explain in the next part, there is sufficient evidence to support the court’s later
detriment finding without regard to the evidence supporting the jurisdictional findings.
Therefore, regardless of the merits of Father’s argument regarding the failure to give the
required advisements and the sufficiency of the evidence at the time of the jurisdictional
hearing, the argument is unavailing because the record does not establish that the court
relied on its jurisdictional findings and the orders are otherwise supported by substantial
evidence.
B. The Sufficiency of the Evidence Supporting the Court’s Six-month Review Orders
At the six-month review hearing “the court shall order the return of the child to the
physical custody of his or her parent . . . unless the court finds, by a preponderance of the
evidence, that the return of the child to his or her parent . . . would create a substantial
risk of detriment to the safety, protection, or physical or emotional well-being of the
child.” (§ 366.21, subd. (e).) The social worker has the burden of establishing that
detriment. (Ibid.) The court shall consider the social worker’s report and
recommendations and “the efforts or progress, or both, demonstrated by the parent . . .
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and the extent to which he or she availed himself or herself to services provided . . . .”
(Ibid.) “The failure of the parent . . . to participate regularly and make substantive
progress in court-ordered treatment programs shall be prima facie evidence that return
would be detrimental.” (Ibid.)
The juvenile court’s detriment finding is reviewed under the substantial evidence
standard. (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424; Angela S. v.
Superior Court (1995) 36 Cal.App.4th 758, 763.) 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. [Citation.]’ [Citation.]” (In re E.D. (2013) 217 Cal.App.4th 960, 966.)
There was substantial evidence presented at the six-month review hearing to
support the court’s detriment finding. As part of his case plan, Father was required to
participate in an approved domestic violence/anger management program and participate
in counseling. He was also ordered to undergo a psychological evaluation. Father
enrolled in the required program and began counseling. However, it is undisputed that he
stopped attending classes, terminated his counseling sessions before completing them,
and refused to undergo a psychological evaluation. As stated above, such behavior
constitutes prima facie evidence that returning the child to Father will create a risk of
detriment. (§ 366.21, subd. (e); see also In re Heather B. (1992) 9 Cal.App.4th 535, 560-
561 [statute creates rebuttable presumption that the failure to participate regularly in
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court-ordered treatment programs support finding that a return to parental custody would
create a substantial risk of detriment to the child].)
In addition, the record is replete with the social worker’s reports of Father’s
hostile, oppositional, and threatening behavior, including yelling at DPSS staff in K.P.’s
presence or while holding her in his arms. During one visit, Father reportedly “held up
[K.P.] in front of himself while attempting to provoke [a social services assistant] to hit
him . . . .” Such behavior was, in the social worker’s opinion, “extremely troubling as it
demonstrates inappropriate parenting ability and a lack of self-control.” Although Father
has generally acted appropriately toward K.P., the court could reasonably conclude that a
parent who acts with the level of anger and hostility that Father displayed toward DPSS
staff poses a substantial risk of detriment to the safety, protection, or physical or
emotional well-being of the child.
Significantly, Father’s refusal to undergo a psychological evaluation undoubtedly
hindered the juvenile court’s ability to determine the risk of detriment and may have
prevented a more favorable decision for Father. If a psychologist determined that
Father’s anger toward DPSS does not reflect a psychological disorder and Father poses
no danger to K.P., the juvenile court’s order might well have been different. In the
absence of such an evaluation, however, the court could reasonably believe that Father’s
hostile behavior, though directed at DPSS, did pose a risk of harm to K.P.
In light of the undisputed evidence that Father stopped participating in his case
plan, refused to complete a psychological evaluation, and the strong evidence of ongoing
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anger management issues and possible psychological problems, there was sufficient
evidence to support the court’s detriment finding at the six-month review hearing.
C. Appeal From Order Terminating K.P.’s Extended Visit With the Paternal
Grandmother and Placing Her in Foster Care
As described above, at a hearing on DPSS’s ex parte application to remove K.P.
from the paternal grandmother’s home, Father left the courthouse and was eventually
contacted by telephone as he was driving, with K.P. in the car, toward a freeway.
Believing that Father was attempting to abduct the child from the jurisdiction, the court
terminated K.P.’s extended visit with the paternal grandmother and ordered K.P. placed
in DPSS’s custody.
On appeal, Father concedes that abducting a child and taking her out of “the
jurisdiction could be serious enough to warrant a termination of placement,” but contends
that “there was no substantial evidence to support such a finding.” We disagree. At a
time when both Father and K.P. were supposed to be in court for a hearing to determine
whether K.P. would be removed from the paternal grandmother’s home, Father had K.P.
in a car heading away from the courthouse. When Father was contacted by telephone and
asked to return to court, he responded: “I’m not going to. Fuck those mother-fuckers.
For nine months my family suffered.” After complaining to the court about the social
worker and DPSS, as well as yelling inaudibly at times, the court informed Father that if
he did not return to court with K.P., the court would issue an order to put him in jail.
Only then did Father agree to return to court. Based on such evidence, the court could
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reasonably conclude that Father was attempting to take K.P. from the court’s jurisdiction.
We therefore reject Father’s argument.6
IV. DISPOSITION
We affirm the orders made on November 15, 2012, January 14, 2013, and January
29, 2013.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
6 Because we affirm the court’s order based on the evidentiary support for the
court’s attempted abduction rationale, we do not address Father’s alternative argument
that the order could not be supported on the ground that Father had unauthorized contact
with K.P.
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