In re Thomas L.
Filed 11/7/13
In re Thomas L. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re THOMAS L., a Person
Coming Under the Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Plaintiff and
Respondent,
v.
FERNANDO L.,
Defendant and
Appellant.
F067163
(Super.
Ct. No. 516562)
THE COURT
name="_ftnref1" title="">*
APPEAL from
orders of the Superior Court of
County. Ann Q. Ameral, Judge.
Caitlin U.
Christian, under appointment by the Court of Appeal, for Defendant and
Appellant.
John P.
Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
Fernando L.
(father) appeals from the juvenile court’s dispositional order removing his
nine-year-old son, Thomas, from his custody under Welfare and Institutions Code
section 361.
title="">[1] Father contends the order must be reversed
because there was no evidence Thomas was at risk in his care and there were
less restrictive alternatives to removal.
We affirm the juvenile court’s order.
PROCEDURAL AND FACTUAL SUMMARY
Father has
two sons, nine-year-old Thomas, the subject of this appeal, and 14-year-old
Alexander. Dora, father’s ex-girlfriend,
is Alexander’s mother. Vanessa, father’s
wife, is Thomas’s mother. Because
Thomas’s detention and removal stems from father and Vanessa’s mistreatment of
Alexander, we incorporate Alexander’s history into our summary of the case.
Father has
a history of domestic violence referrals
beginning in 2000, in Santa Clara County.
In March 2000, Dora reported multiple incidents of domestic violence in
which father assaulted her; striking her head, stomach, chest, back and legs
with his fists. At the time, Alexander
was 11 months old and father and Dora shared custody of him. There were two additional reports of domestic
violence in 2000, stemming from arguments father and Dora had while exchanging
custody of Alexander.
When
Alexander was five years old, he was removed from Dora’s custody because of her
drug use and neglect and was placed with father, who was granted full custody
of him. By that time, father was
involved with Vanessa, and Thomas was an infant.
In November 2005, eight months
after Alexander was placed with father, the
(agency) received a report that Vanessa hit Alexander in the face because he
“got his numbers wrong.†Alexander had
facial bruising, a cut lip, and a bloody nose.
Alexander stated he knew Vanessa did not like him because she was mean
to him, but said he loved her. Father
begged the agency not to place Alexander in foster care and said he would keep
Alexander out of the home until the next day.
Vanessa denied hitting Alexander and she and father agreed to participate
in family maintenance services.
By late February 2006, father and
Vanessa had made an appointment for parenting classes, and the agency reported
Vanessa and father were following their case plan. At the same time, however, the agency
received a report that then six-year-old Alexander was found wandering in the
street. Over the ensuing five months,
the social worker had monthly contact with the family except for March and May
when the social worker attempted home visits but no one answered the door. In May of that year, Alexander stated in
class that he was angry and wanted to kill himself. When the social worker saw Alexander and
Thomas, they appeared happy and clean. In
July 2006, the social worker asked Vanessa if she wanted to continue receiving
family maintenance services and Vanessa said she did not. The social worker closed their case because
the children appeared safe and the parents were not willing to cooperate.
In January 2008, the agency
received a report that Vanessa made Alexander stand outside naked because he
got in trouble. Vanessa denied the
allegation, and Alexander recanted his story.
Alexander said he defecated in his pants and Vanessa had made him strip
off his clothes in the entry way of the home.
The tile in the entry way was cold and that made him angry at her. The agency could not substantiate the report
since the family denied it, but the family was receptive to Alexander receiving
counseling.
In July 2009, while staying with
Dora, Alexander reported that Vanessa slapped him on the right side of his face
causing bruises, and pinched him on the legs causing them to bleed. He said he was afraid of Vanessa and did not
want to return to his father’s house. He
did, however, return and was interviewed by a social worker from the agency. He denied that Vanessa and father hit him. According to the social worker, Alexander and
Thomas presented as healthy, intelligent boys.
The social worker believed that Alexander may have been encouraged to
change his story, but the agency was unable to substantiate the physical abuse
allegation.
In December 2009, Alexander reported
at school that he wished he were dead, that father did not give him dinner the
night before or breakfast that morning, and that father punched him in the
and did not appear afraid of father.
In March 2011, the agency received
a referral that Thomas, then six years old, returned to school after three days
of absence with a swollen and bruised ear.
Thomas said he and father were playing when father got mad and kicked
him in the face. The agency investigated
but determined father did not physically abuse Thomas, and the family agreed to
modify their wrestling activities.
In January 2012, father and Vanessa
reported to a mandated reporter that they threatened to beat Alexander until he
was “black and blue.†They did not allow
him to sleep on a mattress because he urinated on it and they did not permit him
to eat in the school cafeteria. He was
not allowed to eat breakfast or lunch in the school as punishment for
misbehavior. The agency did not
intervene because Alexander did not report he was hungry and because he,
Vanessa and father were in counseling.
In March 2012, the agency received
reports that Vanessa had removed Alexander’s bed and carpet, and he slept naked
on the floor with two sheets. The carpet
was removed because Alexander defecated and urinated on the floor
deliberately. Alexander disclosed that
he was not fed at home for several days in a row and not permitted to eat at
school. He was made to wear soiled
clothes for several weeks and not allowed to change his soiled underwear. In addition, Alexander had to run back and
forth to school, and he was hit and pushed at home. He was allowed six minutes to arrive home
after school. Once he arrived, he was
locked in his room and had to call for bathroom breaks and for dinner. Alexander was told daily that he was going to
be sent to a foster home and feared for his safety. He appeared underweight and had been
diagnosed with attachment disorder. He
was participating in counseling but father and Vanessa were not.
In March 2012, the social worker
helped the family develop a verbal contract with Alexander, and he responded
well for several days, but then resumed urinating in his clothing. In April, father told Alexander to pack his
belongings and not return to the home after school. Alexander reported at school that he had
nowhere to go and was scared and sad. By
May, father and Vanessa were no longer giving Alexander sheets. He was not allowed to sit on the furniture or
wear clothes.
In May 2012, Alexander was
evaluated by psychologist James A. Wakefield, Jr. Dr. Wakefield reported that Alexander was
exposed prenatally to drugs and to maternal drug use until the age of
five. Thereafter, he was exposed to
inappropriate punishment in father’s home, resulting in his admitted use of
enuresis, encopresis and feces smearing in retaliation. Dr. Wakefield further reported that Alexander
was of average intelligence and was not having behavioral or academic problems
at school. However, he opined that
Alexander was emotionally disturbed and had been so for a long time. He said Alexander was engaged in a power
struggle with his parents and he was not controlled by punishment. Dr. Wakefield diagnosed Alexander with
schizoaffective disorder and reactive attachment disorder, recommended
continuing counseling and suggested father takeover as the primary
disciplinarian.
In July 2012, a social worker
reported that father and Vanessa refused to let Alexander participate in
treatment. She further reported that
after Alexander fulfilled a goal, Vanessa increased her expectations and
consequences, and that father used punishment to humiliate Alexander. She further stated father and Vanessa “shut
down every avenue the family’s counselor suggested to decrease Alexander’s
target behaviors,†and when father was asked to participate in treatment, he
declined to do so.
In September 2012, Vanessa and
father agreed to participate in family maintenance services. However, they refused to sign a case plan
that included Thomas. Consequently, in
November 2012, the agency closed their case.
In January 2013, the agency received
a report that Vanessa burned Alexander’s hand.
Alexander said she held his hand over a hot pan and burned his
wrist. The day before, she hit him on
the hand with a baseball bat for taking a pen.
The agency took then 13-year-old
Alexander into protective custody, placed him in foster care and filed a
dependency petition amended to allege he was a minor described under section
300, subdivisions (b) (failure to protect), (c) (serious emotional damage) and
(i) (cruelty). Approximately a week
later, the agency took then eight-year-old Thomas into protective custody out
of concern that he was exposed to the emotional abuse inflicted upon
Alexander. The agency filed a dependency
petition alleging that Thomas was described under section 300, subdivision (b)
and (j) (abuse of sibling). Thomas was also
placed in foster care.
Thomas described how he and
Alexander were treated differently in the home.
Thomas said sometimes Alexander only ate a cheese sandwich while the
rest of the family ate chicken, vegetables and potatoes. He said Alexander was locked in his room
while the rest of the family went on outings and for Christmas Thomas received
games and toys while Alexander received an empty box with a note from Santa
Claus telling him he was too bad to receive presents. Thomas said he also wet the bed but did not
get into trouble. Thomas also explained
that he let Alexander out of his room at night so Alexander could go to the bathroom
and took him back to his bedroom.
Thomas reported his parents
disciplined him by making him stand next to a wall without his hands touching
the wall. Sometimes his parents yelled
at him, sent him to his room, spanked his bottom with a spoon, punched him in
the stomach or took things away from him.
The juvenile court ordered
Alexander and Thomas detained and set their jurisdictional/dispositional
hearings (combined hearings) in February 2013.
After a month in foster care,
Alexander was no longer smearing feces and defecating and urinating in his
clothes and bedding. He said he felt
safe and loved and was doing well in school.
The foster parent reported that he tried to please others but was unsure
of social expectations and became frustrated as a result.
In its report for the combined
hearing as to Alexander, the agency recommended the juvenile court use caution
in considering Dr. Wakefield’s psychological evaluation of Alexander since much
of the background information was provided by father and Vanessa. The agency recommended the juvenile court offer
Dora reunification services but deny them to father.
In its report for the combined
hearing as to Thomas, the agency recommended the juvenile court adjudge Thomas
a dependent child, remove him from father and Vanessa’s custody and order
reunification services for them. The
agency reported that father completed a drug and alcohol assessment but did not
require substance abuse treatment. In
addition, he and Vanessa completed a clinical assessment with clinician Amy
Coleman, who recommended they participate in individual counseling. In addition, they participated in parenting
classes and individual parenting sessions but it was too soon to assess their
progress. They regularly visited Thomas
and were sad and cried at the end of visits.
The agency advised the juvenile court
that despite father and Vanessa’s progress, they did not recognize they
subjected Alexander to emotional cruelty and exposed Thomas to it. Consequently, the agency could not recommend
family maintenance services.
In April 2013, the juvenile court
conducted a contested combined hearing as to Alexander and Thomas. Ms. Coleman testified father and Vanessa were
participating in the parenting program, which consisted of 10 weeks of classes,
followed by 10 individual parenting sessions and a minimum of three
parent/child labs. She said Vanessa and
father had been participating in individual parenting sessions with her for
approximately a month and a half. Vanessa
participated in five individual counseling sessions and father participated in
two. Coleman also co-facilitated two of
the eight group parenting classes they attended. During the group sessions, they covered
stress, anger management, and safety.
Ms. Coleman further testified that during
father’s two sessions, they discussed the reason for his referral for
counseling and how his upbringing influenced his parenting style. She said father and Vanessa believed Thomas
was removed from their custody in order to protect him from Alexander. They both acknowledged treating Alexander differently
but only father provided an explanation; Alexander and Thomas had different
needs.
Ms. Coleman testified it was too
early to determine if father and Vanessa made progress in their parenting
services. There were additional topics
she planned to discuss with them such as their prior child welfare history and
their method of disciplining Alexander. Ms.
Coleman declined to give an opinion as to whether it was safe to return Thomas
to father and Vanessa’s custody, explaining that it was beyond the scope of her
professional duty.
Social worker Sarah Hernandez testified
concerning a risk assessment tool,
structured decision-making (SDM), used by the agency to determine a
parent’s risk level with respect to a child.
She testified that, according to the results of Vanessa’s SDM
assessment, Thomas was at high risk for abuse.
During argument, county counsel asked
the juvenile court to sustain the petitions, deny father reunification services
as to Alexander, and provide father and Vanessa reunification services as to
Thomas.
The juvenile court sustained the
allegations in the petitions and ordered Alexander and Thomas removed from
parental custody. The juvenile court
ordered reunification services for Dora and father as to Alexander despite the
agency’s recommendation to deny father services. The court explained that denying father
reunification services would send Alexander the message that he was going to be
treated differently again and that it may be in his best interest to attempt
reunification with father. The juvenile court
ordered reunification services for father and Vanessa as to Thomas. This appeal ensued.
DISCUSSION
Father contends there was insufficient evidence to support
the juvenile court’s removal order. We
disagree.
Section 361, subdivision (c), the
removal statute, prohibits the juvenile court from removing a minor child from
the physical custody of the parent(s) with whom the child resided at the time
the petition was initiated unless the juvenile court finds clear and convincing
evidence that “[t]here is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-being of the
minor if the minor were returned home, and there are no reasonable means by
which the minor’s physical health can be protected without removing the minor
from the minor’s parent’s … physical custody.â€
(§ 361, subd. (c).)
“The parent need not be dangerous and the child need not have been
actually harmed for removal to be appropriate. The focus of the statute is on
averting harm to the child.†(In re
Cole C. (2009) 174 Cal.App.4th 900, 917.)
“In
reviewing the sufficiency of the evidence on appeal, we look to the entire
record to determine whether there is substantial evidence to support the
findings of the juvenile court. We do
not pass judgment on the credibility of witnesses, attempt to resolve conflicts
in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in
support of the findings, view the record in the light most favorable to the
juvenile court’s order, and affirm the order even if there is other evidence
that would support a contrary finding.
[Citation.] When the [juvenile
court] makes findings by the elevated standard of clear and convincing evidence,
the substantial evidence test remains the standard of review on appeal. [Citation.]
The appellant has the burden of showing that there is no evidence of a
sufficiently substantial nature to support the order. [Citations.]â€
(In re Cole C.,
915-916.)
In our view, father failed to meet his burden.
Father contends there was
Thomas to his custody would pose a substantial danger of emotional harm to
Thomas because Alexander was the cause of the inappropriate discipline and
Alexander was no longer in the home and unlikely to return. Further, father contends there was no
evidence Thomas was inappropriately disciplined or would be because, unlike
Alexander, Thomas did not have behavioral problems. Finally, father contends Thomas’s sadness and
difficulty adjusting to foster care demonstrated that removing him from
father’s custody was more harmful than returning him.
In effect, father cites evidence to support an
order returning Thomas to his custody rather than to support the removal order
issued by the juvenile court. Our role,
however, is to determine whether substantial
evidence supports the order actually made.
In our opinion, it does.
For eight years,
father and Vanessa cruelly abused Alexander physically and emotionally. When their punishments did not work, they
intensified them. By the time Alexander
was finally removed, he was being denied food and virtually all the comforts of
a home. To make matters worse, Thomas
had become an unwitting participant in his brother’s abuse.
In our view,
substantial evidence supported a finding that Thomas would be at a substantial
risk of harm if returned to father’s custody.
Father has a history of violence, as evidenced by his interactions with
Dora. In addition, he either passively
stood by while Vanessa abused Alexander or actively participated in the abuse. His claim that Alexander’s behavior is the
genesis of the abuse is not supported by the record. Vanessa was abusing Alexander within eight
months of his placement with father, not because he was misbehaving but because
he “did not get his numbers right.â€
Eventually, Alexander acted out in response to the abuse and the abuse
escalated in intensity. Once Alexander
was taken out of the home, his behavior improved. Under the circumstances, there is no reason
to believe that Thomas would not be targeted in a similar fashion if he were
the only child in the home.
Father cites this court to
for the proposition that the abuse of one child does not justify the removal of
the child’s sibling. (
T., however, is easily distinguishable.
In that case, a four-month-old sustained bruising on and underneath his
eye. He and his three-year-old sister
Hailey were removed from parental custody.
The parents could not explain the injury and a child abuse expert
testified the injuries were nonaccidental and unlikely inflicted by
Hailey. The expert could not tell if the
injuries were sustained during a single or multiple episodes. Another expert testified that it was
impossible to determine if the injuries were caused intentionally and that they
could have been caused by Hailey. (
The appellate court in
removal order, concluding there was insufficient evidence to order Hailey
removed from the home because there was no evidence of any abuse and the
evidence of abuse was disputed. (
In this case, there was ongoing child abuse.
Father also contends there were
alternatives to removal such as frequent unannounced home visits and in-home
services to address safety, stress management and appropriate discipline. Father also points out that Thomas was under
the continuing supervision of the juvenile court, the social worker and family
counselor, and therapists who could detect if Thomas was at risk.
The evidence strongly suggests,
however, that the alternatives father suggests would not suffice. There is more than one instance of father and
Vanessa persuading Alexander to recant his allegation of abuse. No amount of supervision can protect a child
in an abusive home if parents prevent the child from disclosing the abuse to
authorities. In light of the foregoing, we conclude substantial
evidence supports the juvenile court’s removal order.
DISPOSITION
The dispositional orders entered on April 19, 2013, are affirmed.
name="_ftn1" title="">* Before
Levy, Acting P.J., Cornell, J. and Poochigian, J.
name="_ftn2" title="">[1] All
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
