In re K.G. CA2/4 ( 2014 )

Filed 10/16/14 In re K.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 K. G., a Person Coming Under the
Juvenile Court Law.
B252758 c/w B253595
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No. CK89770)
Plaintiff and Respondent, ORDER MODIFYING
OPINION [NO CHANGE IN
v. JUDGMENT]
ROOSEVELT W. et al.,
Defendants and Appellants.
THE COURT:*
It is ordered that the opinion filed October 14, 2014, be modified as follows:
page 1, remove “Marilyn Martinez, Commissioner” and replace with “Carlos
E. Vasquez, Judge”;
page 1, line beginning with William Hook, place “Roosevelt W.” after “for
Defendant and Appellant.”
____________________________________
page 1, add line “Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant Kanika G.”
There is no change in the judgment.
__________________________________________________________________
*EPSTEIN, P. J. MANELLA, J. WILLHITE, J.
Filed 10/14/14 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 K. G., a Person Coming Under the
Juvenile Court Law.
B252758 c/w B253595
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No. CK89770)
Plaintiff and Respondent,
v.
ROOSEVELT W. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County, Marilyn
Martinez, Commissioner. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
Appellants Roosevelt W. (Father) and Ka. G. (Mother) are the parents of
Kingston W., a young boy, and K.G., “Ky,” an infant girl. In a prior writ
proceeding initiated by Father, we reviewed the juvenile court’s November 4, 2013
order as it related to Kingston and in a March 24, 2014 opinion denied the writ.1 In
this appeal, both parents seek review of the November 4, 2013 order as it relates to
Ky. They contend the court erred in (1) refusing Father’s request for placement of
Ky under Welfare and Institutions Code section 361.2; (2) requiring Father to
participate in reunification services; (3) refusing Mother’s request that Ky be
returned to her custody; (4) finding that reasonable reunification services had been
provided to Mother; and (5) restricting their contact with Ky to monitored visits.2
For the reasons discussed, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Proceeding
The family came to the attention of the Department of Children and Family
Services (DCFS) in September 2011, almost a year prior to Ky’s birth. Mother,
then living with her parents and Kingston, had a mental breakdown. After being
released from a psychiatric hold, she fled with her son to Alabama, where Father
lived. Father contacted DCFS and arranged for the boy to be returned to
California, to reside with his maternal grandparents, who were eventually given
custody by the juvenile court. At a jurisdictional hearing in November 2011, the
court found that Mother had mental and emotional problems that rendered her
1
The order terminated reunification services for both parents with respect to Kingston and set a hearing to
consider termination of parental rights.
2
Undesignated statutory references are to the Welfare and Institutions Code.
2
incapable of providing regular care for the boy.3 Mother’s reunification plan with
respect to Kingston required her to undergo a psychiatric evaluation, to participate
in counseling, and to take all prescribed psychotropic medication.
Father was initially deemed non-offending and was not ordered to
participate in services. After the jurisdictional hearing, Mother reported that Father
had physically abused her, and DCFS filed a section 342 subsequent petition.4 At a
second jurisdictional hearing held in July 2012, the court sustained allegations that
Mother and Father had a history of engaging in violent altercations, specifically
finding true that Father had struck Mother with a rope, tied her to a chair, and
slapped her, and that Mother had thrown boiling water at Father. Father’s
reunification plan, also addressed at the July 2012 hearing, required him to take a
parenting class and to undergo individual counseling to address domestic violence
and other case issues with a DCFS-approved counselor.
B. Jurisdictional and Dispositional Hearings for Ky
Ky was born in August 2012, testing positive for marijuana. Mother was
disoriented and anxious after the birth, and did not want medical personnel to
touch the baby or to perform standard tests. DCFS filed a petition under section
300 seeking to assert jurisdiction under section 300, subdivision (b) (failure to
protect) and subdivision (j) (abuse of sibling). Ky was detained and placed with
Kingston in the home of their maternal grandparents.
At the September 2012 jurisdictional hearing for Ky, Mother acceded to the
following findings: (1) in support of jurisdiction under subdivision (b) of section
3
The evidence indicated that Mother claimed, among other things, that she was God, that God was talking to
her, and that the police officers and medical personnel who came to evaluate her were devils. Father reported that
while in Alabama, Mother left the house naked and threw knives at him.
4
Father admitted tying Mother to a chair, slapping her, hitting her legs with a rope and forcing her to take
medication.
3
300, the finding that Mother had used marijuana during her pregnancy and that she
displayed mental and emotional problems rendering her incapable of providing
regular care for the child and endangering the child’s physical and emotional
health and safety; and (2) in support of jurisdiction under subdivision (j) of section
300, the finding that Mother had inappropriately physically disciplined Kingston
by striking him with a belt, and that Mother and Father had engaged in violent
altercations in front of Kingston, as described above. At the dispositional phase of
the hearing, Mother was instructed to participate in individual counseling with a
DCFS-approved counselor, to take all prescribed psychotropic medications, to
participate in six random drug tests, and to participate in a drug rehabilitation
program if any test was missed or dirty.
Prior to the original jurisdictional/dispositional hearing for Ky, Mother had
identified another man as Ky’s father. In April 2013, the court found that Father
was Ky’s presumed father and instructed DCFS to initiate an ICPC (Interstate
Compact on the Placement of Children) evaluation of Father’s home in Alabama.5
In May 2013, the caseworker reported receiving a letter from Father’s Alabama
therapist indicating he had been under her care for less than a month.6 DCFS
concluded Father’s counseling had been inadequate and recommended termination
of reunification services with respect to Kingston. In July and August, DCFS
continued to recommend in its court-filed reports termination of Father’s
reunification services with respect to Kingston because Father had not participated
in therapy beyond the four weeks completed in 2012. Father maintained that the
5
Alabama’s Department of Human Resources was unable to complete the requested home study because
Father appeared to have moved to California and was not available to be interviewed in Alabama. Father
subsequently explained that he had remained in this state to care for an ailing parent, but maintained an address in
Alabama.
6
At the 12-month review hearing for Kingston in January 2013, Father had testified that he had attended
counseling sessions with a therapist in Alabama twice weekly for a brief period, but that he did not discuss with the
therapist all the incidents of domestic violence found true by the court, and that he did not believe tying Mother to a
chair constituted domestic violence.
4
counseling he had received was sufficient. Pending its determination of this issue,
the court postponed ordering a new reunification plan for Father in Ky’s
proceeding.
C. Mother’s Progress
Mother’s participation in the reunification plan ordered at Kingston’s
dispositional hearing had vacillated wildly. After her return from Alabama, she
submitted to an intake assessment at a mental health clinic and began attending an
anger management group, parenting classes, and group counseling for people
suffering from schizophrenia. She was evaluated by a psychiatrist in April 2012,
who diagnosed a psychotic disorder, but prescribed no medication because Mother
was pregnant with Ky and was unwilling to take medication. Subsequently,
Mother claimed she had no need to participate in counseling or change any of her
behavior, and cut off all contact with the caseworker.
After Ky’s birth, Mother enrolled in Narconon, where she participated for
nearly a year in parenting and life skills classes, a drug education and relapse
prevention program, a domestic violence/anger management program, and
individual counseling. For a time, she attended classes six hours per day, Monday
through Friday. Drug tests administered by the program were consistently
negative. In January 2013, she obtained a letter from the Los Angeles County
Department of Mental Health indicating she did not have a mental condition
requiring psychotropic medication.
Mother’s visitation with Ky was initially appropriate and pleasant.
Beginning in October 2012, however, Mother began refusing to bottle feed Ky
during the visits, insisting she should be breastfed. During a period of several
months, Mother regularly engaged in inappropriate discussions with Kingston
about the case, and argued with the caseworker and her parents in front of the
5
children. On separate occasions in October 2012, she told Kingston that his
grandparents were “devil worshippers” and that his grandmother was “Satan.” On
another occasion, after the caseworker terminated the visit because Mother started
yelling, Mother refused to relinquish the children until law enforcement personnel
arrived, frightening Kingston. On that occasion, she attempted to force her breast
into Ky’s mouth, causing the baby to cry. In the latter part of 2012, Mother
threatened the caseworker. She also threatened to spank Kingston during a visit
and told him he would never see his grandparents again after she regained custody.
By May 2013, Mother appeared to be making progress and began once again to
behave appropriately during visitation. However, she refused to communicate with
her parents, even when they attempted to impart important medical and
developmental information concerning Ky.7
In May 2013, DCFS recommended six more months of services for Mother,
and proposed that Mother obtain another psychiatric evaluation. Shortly after that
report was filed, the caseworker learned that Mother had been discharged from
Narconon for missing classes, yelling and screaming at her counselor, and
exhibiting hostility toward staff members. In its July and August 2013 status
reports, DCFS recommended termination of Mother’s reunification services.
During this period, Mother was not participating in any program and had refused to
undergo another psychiatric evaluation.
D. November 4, 2013 Review Hearing
At the hearing on November 4, 2013, which was the six-month review
hearing for Ky and the 18-month review hearing for Kingston, the court found that
reasonable services had been provided, but that the parents had not regularly
7
Ky suffered from torticollis, which caused her neck to incline to one side. She also suffered a cranial
deformation, requiring her to wear a helmet. In addition, she was receiving therapy for developmental issues.
6
contacted and visited with Kingston and had not made significant progress in
resolving the problems that led to Kingston’s removal from the home or
demonstrated the capacity and ability to complete the objectives of the treatment
plan or to provide for the boy’s safety, protection, physical and emotional well
being, and special needs. With respect to Father’s claim that he had complied with
the reunification plan by participating in therapy in Alabama for four weeks, the
court found that Father had made only partial progress toward alleviating or
mitigating the causes necessitating the assertion of jurisdiction, and specifically
found that one month in therapy could not address the violent conduct asserted in
the petition, “given the seriousness of the domestic violence allegations . . . .”8 The
court terminated reunification services with respect to Kingston, and set a section
366.26 hearing.
At that same hearing, the court initiated a reunification plan for Father with
respect to Ky. The court ordered Father to participate in a parenting program and
individual counseling to address domestic violence, as well as obtain medical
training to address Ky’s medical needs. Father’s counsel requested a home of
parent order for Ky, based on the same evidence that had been submitted to
establish that Father had complied with the dispositional plan with respect to
Kingston. The request was denied.
The court also addressed Mother’s progress with respect to Ky. Although
the court-filed reports recommended terminating Mother’s reunification services,
its counsel stated that DCFS was not opposed to extending services for an
additional six months, as long as services included individual counseling with a
8
In our prior opinion, we affirmed the order terminating Father’s reunification services with respect to
Kingston. We found that Father was aware by the 18-month review hearing that neither DCFS nor the court
considered the four weeks of counseling he received nearly enough to address the proclivity for domestic violence
demonstrated by the allegations of the petition, and that no different result would have obtained had his request for a
contested hearing been granted.
7
licensed therapist and medical training.9 Mother’s counsel was asked to comment,
and voiced no objection, but stated that Mother was in need of therapist referrals.
The court found that reasonable services had been provided. It found that Mother
had made partial progress towards alleviating or mitigating the causes necessitating
placement of Ky and that she had regularly and consistently visited the child, but
that return of the child to Mother would create a substantial risk of detriment to the
physical or emotional well-being of the child. It ordered Mother to undergo
therapy with a licensed therapist and to enroll in medical training to address Ky’s
medical needs. The court instructed DCFS to provide Mother referrals for
individual counseling.
With respect to visitation, the court gave DCFS discretion to liberalize, but
ordered that visitation remain monitored until DCFS exercised that discretion. The
court’s order further stated that Father could have unmonitored visits at the
recommendation of his DCFS-approved therapist, once he commenced therapy
with a therapist. Mother and Father appealed.
DISCUSSION
A. Father’s Appeal
1. Ky’s Placement
Section 361.2, subdivision (a) requires that when a court orders the removal
of a child from a custodial parent after asserting jurisdiction under section 300, it
shall “determine whether there is a parent of the child, with whom the child was
not residing at the time that the events or conditions arose that brought the child
within the provisions of Section 300, who desires to assume custody of the child.”
If such parent requests custody, “the court shall place the child with the parent
9
DCFS also sought to examine an infant to whom Mother had given birth shortly before the hearing. That
infant is not a subject of this appeal.
8
unless it finds that placement with that parent would be detrimental to the safety,
protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).)
Father contends on appeal that the trial court erred in refusing his request for
placement at the November 4, 2013 hearing. He argues that section 361.2 required
the court to place Ky with him at that time. Respondent contends that section
361.2 can be invoked only at the original detention hearing, when the child is first
removed from the custodial parent’s home, and that Father’s request came too late.
We need not resolve this issue.10 As our Supreme Court has said, “even if
section 361.2 did apply at [a later] stage of the proceedings, the statute assumes the
existence of a competent parent able to immediately assume custody.” (In re
Zacharia D., supra, 6 Cal.4th at p. 454.) Father’s claim that he was entitled to
custody of Ky under section 361.2 is based on the proposition that he had
“successfully participated in services in Kingston’s case that resolved all his
issues.” That claim is not born out. At jurisdictional hearings in July and
September 2012, the court found that Father had repeatedly engaged in serious
domestic violence. The court found at the November 4, 2013 hearing that Father
had not made substantial progress in resolving the problems that led to Kingston’s
removal from the home, and that he had not demonstrated the capacity and ability
to complete the objectives of the treatment plan and provide for the boy’s safety,
protection, physical and emotional well being. It specifically found that the four
weeks of therapy he had undergone in Alabama were insufficient to address the
serious domestic violence allegations of the petition. We upheld that finding on
10
We note that although the Supreme Court stated in In re Zacharia D. (1993) 6 Cal.4th 435, 453, that the
language of the provision “suggests that the statute is applicable only at the time the child is first removed from the
custodial parent or guardian’s home,” several recent Court of Appeal decisions have held that its provisions can be
invoked if a nonoffending noncustodial parent appears at a later hearing. (See, e.g., In re Jonathan P. (2014) 226
Cal.App.4th 1240, 1253-1257; In re Suhey G. (2013) 221 Cal.App.4th 732, 743; In re Janee W. (2006) 140
Cal.App.4th 1444, 1451.) Moreover, several of the California Rules of Court governing dependency proceedings
state that the juvenile court must follow or apply the procedures of section 361.2 at review hearings. (See, e.g., Cal.
Rules of Court, rule 5.710(b)(2) & rule 5.708(k).)
9
appeal. Having previously rejected Father’s argument, we conclude the court did
not err in refusing to grant him custody of Ky.11
2. Disposition
In a similar vein, Father contends the court’s dispositional order requiring
him to participate in reunification services in order to gain custody of Ky was
unwarranted as he had “already successfully completed [the ordered services] in
Kingston’s case.” The court’s order in the proceeding relating to Kingston, which
we previously affirmed, established that Father was in need of additional services
to address the domestic violence that led to assertion of jurisdiction over both
Kingston and Ky. In acknowledgment of Father’s efforts, the court did not require
Father to re-take a parenting class or re-enroll in an anger management program. It
required only that he augment the therapy found to be inadequate by both DCFS
and the court by participating in additional counseling with a DCFS-approved
therapist. “‘The juvenile court has broad discretion to determine what would best
serve and protect the child’s interest and to fashion a dispositional order in
accordance with this discretion. [Citations.] The court’s determination in this
regard will not be reversed absent a clear abuse of discretion.’” (In re Corrine W.
(2009) 45 Cal.4th 522, 532, quoting In re Jose M. (1988) 206 Cal.App.3d 1098,
1103-1104.) We perceive no abuse of discretion in the court’s dispositional order
requiring Father to participate in further counseling to address his proclivity for
domestic violence.
11
At the time Father’s opening brief was filed, our opinion in the prior related proceeding had not yet issued.
10
B. Mother’s Appeal
1. Return of Ky
At the six-month review hearing, “the court shall order the return of the
child to the physical custody of his or her parent or legal guardian unless the court
finds, by a preponderance of the evidence, that the return of the child to his or her
parent or legal guardian would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (e).)
Mother contends that the court’s finding at the November 4, 2013 hearing that
returning Ky to her custody posed a risk of detriment was not supported by
substantial evidence. We disagree.
“The failure of the parent or legal guardian to participate regularly and make
substantive progress in court-ordered treatment programs” constitutes “prima facie
evidence that return would be detrimental.” (§ 366.21, subd. (e).) In determining
whether return would be detrimental, the court “shall consider the efforts or
progress . . . demonstrated by the parent or legal guardian and the extent to which
he or she availed himself or herself to services provided . . . .” (Ibid.) Here,
jurisdiction was asserted in large part because Mother’s mental and emotional
problems rendered her incapable of providing regular care for her children.
Mother continued to exhibit troubling behavior during the pendency of the
proceedings below. She threatened the caseworker. She threatened to physically
punish Kingston. She argued loudly and inappropriately with the caseworker and
the grandparents in front of the children. She referred to the grandparents during
visitations as “devil worshippers” and “Satan.” She refused to communicate with
them, even about Ky’s medical condition and needs. On one occasion, she refused
to relinquish the children until forced to do so by law enforcement personnel. At
the time of the November 4, 2013 hearing, Mother was not participating in any
services. The record reflects that Mother had been dismissed from her prior
11
program in May 2013 for missing classes, yelling and screaming at her counselor,
and exhibiting hostility toward staff members. Under these circumstances, the
court reasonably concluded that Mother had not made sufficient progress in
resolving the problems that led to the children’s removal from her home, and that
return of Ky to Mother would create a substantial risk of detriment.
2. Reasonableness of Services
If the child is not returned to the parent or legal guardian at the six-month
review hearing, “the court shall determine whether reasonable services that were
designed to aid the parent or legal guardian in overcoming the problems that led to
the initial removal and the continued custody of the child have been provided or
offered to the parent or legal guardian. The court shall order that those services be
initiated, continued, or terminated.” (§ 366.21, subd. (e).) Mother contends that
the court failed to make such finding with respect to Ky and that in any event,
substantial evidence would not have supported it.
As respondent points out, the court’s November 4, 2013 minute order
includes a finding that reasonable services were provided, although the court did
not make the finding on the record. Mother claims that services were not
reasonable, but does not point to any specific deficiency other than an alleged
failure to provide services to address her failure to communicate with the
grandparents, which was not a basis for assertion of jurisdiction.12 The record
reflects that Mother was enrolled for nearly a year in a program to help her resolve
the issues that led to the assertion of jurisdiction over the children, but that she was
12
A new caseworker had been assigned in early 2013 after Mother threatened the previous caseworker. The
new caseworker suffered a stroke, and was on medical leave for several weeks in the summer of 2013, causing
several reports to be filed late and the postponement of Ky’s six-month review hearing. In her brief, Mother
discusses these facts in connection with her claim that the services provided were not reasonable, but does not
specify any way in which the caseworker’s medical problems and occasional absences interfered with Mother’s
ability to comply with the reunification plan.
12
discharged as a result of her own inappropriate behavior. There is no evidence in
the record that she thereafter attempted to obtain referrals for a new program from
DCFS. To the contrary, it appears that, like Father, she took the position that she
had resolved all of her issues and required no additional services. Once a parent is
informed of the proceedings and the requirements of the court-ordered plan, “it
became the obligation of the parent to communicate with the Department and
participate in the reunification process.” (In re Raymond R. (1994) 26 Cal.App.4th
436, 441.) The agency is not required to “‘take the parent by the hand and escort
him or her to and through classes or counseling sessions.’” (In re Christina L.
(1992) 3 Cal.App.4th 404, 414.) Moreover, even were we to find that the services
provided prior to November 4, 2013 were inadequate, the remedy is to return the
matter with instructions to the juvenile court to order additional services. (See,
e.g., In re Taylor J. (2014) 223 Cal.App.4th 1446, 1453; Amanda H. v. Superior
Court (2008) 166 Cal.App.4th 1340, 1346-1348.) Here, Mother was provided an
additional six-months of reunification services by the court. Accordingly, her
claim that inadequate services were provided prior to November 4, 2013, even if
true, provides no basis for reversal of the court’s order.
C. Monitored Visitation
Both Mother and Father contend that the court abused its discretion in
requiring their visitation with Ky to be monitored. For the reasons discussed, we
disagree.
“There is no question but that the power to regulate visitation between
minors determined to be dependent children [citation] and their parents rests in the
judiciary.” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756.) Defining the
boundaries of the parent’s visitation “necessarily involves a balancing of the
interests of the parent in visitation with the best interests of the child.” (Id. at 757.)
13
“In balancing these interests, . . . [t]he court may, of course, impose any . . .
conditions or requirements to further define the right to visitation in light of the
particular circumstances of the case before it.” (Ibid.) “[D]ependency law affords
the juvenile court great discretion in deciding issues relating to parent-child
visitation, which discretion we will not disturb on appeal unless the juvenile court
has exceeded the bounds of reason. [Citation.]” (In re S.H. (2011) 197
Cal.App.4th 1542, 1557-1558.)
Support for an order restricting a parent’s visitation does not require proof of
actual harm to the child by the parent; the standard is substantial risk or danger of
harm. (See In re Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 1030; In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1656-1658.) In determining the need for
such an order, “the court may consider the parent’s past conduct as well as present
circumstances.” (In re Cole C. (2009) 174 Cal.App.4th 900, 917; see also In re
Y.G. (2009) 175 Cal.App.4th 109, 116 [juvenile court may “consider a broad class
of relevant evidence in deciding whether a child is at substantial risk from a
parent’s failure or inability to adequately protect or supervise the child.”].)
The evidence in the record supports that Mother had difficulty maintaining
appropriate standards of behavior during visitation. Even when monitored, she
engaged in inappropriate discussions with Kingston about the case, threatened to
physically discipline him, argued with the caseworker and her parents, and on one
occasion, refused to relinquish custody of the children. After initially making
progress in the Narconon program, she was abruptly discharged in May 2013 due
to her inability to control her outbursts, and had not begun any other programs or
therapy at the time of the November 4, 2013 hearing. Although Father’s abusive
behavior was directed at Mother, courts have recognized that “‘children of abusive
fathers are likely to be physically abused themselves.’” (In re Sylvia R. (1997) 55
Cal.App.4th 559, 562, quoting Cahn, Civil Images of Battered Women: The
14
Impact of Domestic Violence on Child Custody Decisions (1991) 44 Vand. L.Rev.
1041, 1055-1056; accord, In re E.B. (2010) 184 Cal.App.4th 568, 576.) Moreover,
should Mother and Father resume their relationship, which they have never
abandoned, continuing domestic violence could endanger an infant unable to
protect herself. We conclude the court did not abuse its discretion in requiring
monitored visitation.
15
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P.J.
WILLHITE, J.
16