In re Amy H.
Filed 9/4/12 In re Amy H. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
In re AMY H., A Person Coming Under the Juvenile Court
Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and
Respondent,
v.
IGNACIO H.,
Defendant and
Appellant.
G046441
(Super. Ct.
No. DP021410)
O P I N I O
N
Appeal from an order of the Superior Court of
County, Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Marsha
F. Levine, under appointment by the Court of Appeal, for Defendant and
Appellant.
Nicholas
S. Chrisos, County
Counsel, Karen L. Christensen and Julie
J. Agin, Deputy County Counsel, for Plaintiff
and Respondent.
No
appearance for the Minors.
Ignacio H.
(Father) appeals from a dispositional order of the juvenile court. He contends the court erred in denying his
request for custody of his daughter Amy.
We disagree and affirm the order.
We find substantial evidence
supports the trial court’s decision.
FACTS
In
June 2011, four-year-old Amy and her half-siblings were taken into protective
custody pursuant to a warrant that was requested by the
(SSA). The warrant alleged the
children’s mother (Mother) is mildly mentally retarded and had failed to
provide the children with minimal care and support. SSA also alleged the children’s fathers knew
or should have known Mother was incapable of caring for the children yet failed
to protect them. Upon being detained,
the children were placed with their maternal aunt, who presently cares for
them.
The
next day, the social worker contacted Father by telephone at his home in Acapulco,
Mexico. During the call, Father said he had lived in
the United States
for 18 years but was deported around 2008 for driving without a license. He also said that, prior to that time, he had
been living with Mother and supporting Amy, who was born in 2007. Father said that when Amy was a toddler, she
and Mother lived with him in Acapulco
for about six months. However, Mother
didn’t like it there, so she and Amy returned to the United
States.
Father claimed the last time he saw Amy was about a year ago, in Tijuana. He said he knew Mother had not been caring
for Amy properly, and he wanted the child placed in his care. He also said he would participate in any
reunification services offered to him.
He admitted a decade-old incident of
but denied any history of drug or alcohol abuse.
The
juvenile court upheld the children’s detention and authorized reunification
services for Mother and Father. It also
authorized phone contact between Father and Amy and asked SSA to look into the
feasibility of border visits. In
addition, the parties discussed the prospect of Amy getting a passport and the
need for SSA to coordinate with Desarrollo Integral De La Familia (DIF), a
Mexican social services agency, to ensure Father was afforded reunification
services.
A
month into the case, SSA filed an amended petition alleging Father had an
unresolved history of violent behavior and substance abuse that placed Amy at
risk of harm. The allegation stemmed
from a criminal records check that revealed Father had been arrested and cited
for inflicting corporal injury on a cohabitant in 1995 and that he was
convicted of that offense in 1999. That
year Father was also charged with child cruelty but the charge was ultimately
dismissed. In 2000, Father was again
convicted of inflicting corporal injury on a cohabitant, as well as violating a
protective order and making a terrorist threat.
And in 2005, he was convicted of driving without a license and giving
false identification to a police officer.
Then, in 2006 he was convicted of possessing drug paraphernalia and
failing to appear for a court appearance.
His final brush with the law occurred two years later, in 2008, when he
was arrested and cited for possessing marijuana.
After
this information was discovered, the social worker asked Father about his
criminal record. At first, he said his
record was limited to driving violations.
But after the social worker informed him of the results of the records
check, he acknowledged the domestic abuse charges. He claimed the victim injured herself, and he
only admitted the charges because he didn’t want to spend more time in jail. He also said he had completed a court-ordered
domestic violence program in Irvine, but he did not have a certificate of
completion. He denied possessing drug
paraphernalia or knowing anything about the child cruelty charge that was
leveled against him in 1999, but he did admit using marijuana regularly while
he was in the United States. He said he
was clean now and had not used any drugs since he was deported to Mexico. At one point, he told the social worker his
deportation was due to a driving under the influence charge, but he later told
her that was not true and that he had mentioned that charge “by mistake.”
When
the social worker interviewed Amy, she said she wanted to live with
Father. They had been having regular
phone contact, and she seemed to enjoy their conversations. Father told the social worker he was
preparing a room for Amy in his house in anticipation of her arrival. He said that although he works long hours as
a security guard, including the nightshift at times, he has relatives who would
be willing to help him care for Amy if she was placed in his care.
Knowing
of Father’s desire to reunify with Amy, SSA contacted the Mexican Consulate to
ensure reunification services were being offered to him through DIF. Among other things, SSA requested that
domestic violence, substance abuse and parenting classes be made available to
Father. SSA also requested a home study
to assess Father’s ability to care for Amy.
The
jurisdiction/disposition hearing was originally scheduled to take place in July
2011, but it was continued several times.
Over the course of this period, Father’s attorney repeatedly brought up
the issue of border visits and passport funding. However, as it turned out, Amy could not
obtain a passport until she was declared a dependent of the court. In addition, Father told the social worker
that because of his work schedule, and because he lives so far away from the
border, he could only visit Amy every other month. Meanwhile, Mother was jailed for assaulting
the father of Amy’s half-siblings.
Despite her incarceration, she requested custody of Amy, and Amy said
she wanted to live with her.
On
August 10, 2011, SSA filed a second amended petition to reflect that although
Father had a history of domestic violence and substance abuse, he was working
toward resolving those issues.
During
September 2011, the social worker spoke with Father by telephone on several
occasions. He said he had been in
contact with DIF regarding his services and was participating in a domestic
violence program, parenting classes and substance abuse treatment, all at the
same location. However, he was unable to
provide the name of anyone at the facility whom the social worker could contact
to check on his progress.
Father continued to have regular
phone contact with Amy, and their first border visit was scheduled for November
1.
On October 10, DIF prepared a home study on
Father’s residence in Acapulco. The
study states that Father lives in a two bedroom dwelling, works 12 hours a day
and earns $5,200 per month. It also
states his girlfriend has a law degree and works in the public ministry. When interviewed for the study, Father
reported that although Amy was just nine months old when he was deported, he
continued to provide support for her after that time, and he hopes she will
eventually be placed in his care.
However,
in late October, Father informed the social worker he could not make it to the
border visit that was planned for November 1, because he couldn’t get time off
from his job. He said he was still
attending all of his treatment programs and was also undergoing drug
testing. He also provided the phone
number of the treatment facility where the programs were being administered.
In
November 2011, Amy told the social worker she wanted to be with Father. However, she also said she wanted to live
with the social worker. Mother pleaded
guilty to her criminal charges and was sentenced to a short jail term. At the jurisdictional hearing on November 29,
she pleaded no contest to the allegations in the second amended petition, and
Father submitted on the reports. The
court then assumed jurisdiction over Amy and her step-siblings and continued
the disposition hearing to January 10, 2012.
With that hearing in mind, the court also ordered SSA to secure a
passport for Amy and to obtain further information regarding Father’s progress
on his case plan.
On
December 8, 2011, the social worker telephoned Father, and he said he had
completed his parenting classes and his drug treatment program. However, upon further questioning, he
admitted he was less than half-way done with his drug treatment program. He also said he had not yet started his
domestic violence program. Given his
work schedule, he said he probably could not visit Amy at the border until the
end of January, 2012. Therefore, a visit
was scheduled for January 30. Like
Father, Mother said she wanted custody of Amy.
However, she also said she was comfortable with Amy living with
Father. Amy’s passport application was
submitted to authorities on December 15, 2011.
In
early January 2012, Father reported he had completed his parenting classes and
was working on his drug treatment and domestic violence programs. The social worker tried on numerous occasions
to contact the director of those programs in Mexico, but she was unsuccessful
in that regard.
On
January 10, 2012, nearly seven months after Amy was detained, the disposition
hearing finally began. At that time,
Mother’s attorney informed the court Mother was supportive of Father’s request
to have Amy returned to him. However,
the social worker testified she felt it would be premature to return Amy to
Father because, although he had apparently completed his parenting classes, he
was still working on his drug treatment and domestic violence programs. The social worker said she had made several
attempts to contact Father’s service providers, but her efforts had not been
fruitful. The social worker feared that
because Father was still working on his drug and domestic violence issues, he
could pose a threat to Amy if she was placed in his care.
On
cross-examination, the social worker acknowledged Father’s documented incidents
of domestic violence occurred before Amy was born, he offered to provide
support for Amy after he was deported, he speaks with Amy frequently on the
phone, and she has an expressed a preference for living with him. However, the social worker still believed it
was too early in the case to return Amy to Father’s care.
Amy’s
attorney agreed with this assessment, and so did the court. Observing that Amy was only four years old,
the court noted she had made conflicting statements about who she wanted to
live with. And despite Father’s frequent
phone contact with her, they had not actually seen each other for a substantial
period of time. The court also found it
significant that Father has made inconsistent statements to the social worker
about his past criminal behavior and his progress on his case plan. All things considered, the court believed it
would be detrimental to place Amy in Father’s custody at this time and rejected
his request to have her placed in his care.
DISCUSSION
Father
argues there is insufficient evidence to support the court’s decision to keep
Amy in her current placement with her maternal aunt. We disagree.
In
rendering its decision, the court cited Welfare and
Institutions Code section 361, subdivision (c)(1).
Under that provision, a dependent child may not be removed from the
custody of a parent with whom he or she resided at the time the petition was
initiated unless there is clear and convincing evidence of a substantial danger to the child’s
health or well-being and there are no other reasonable means to protect the
child.
Father correctly notes that since Amy was not
in his custody when the petition was initiated, section 361, subdivision (c)(1)
does not pertain to him. However, as we
now explain, the trial court’s ruling was fully justified under a related
provision applicable to noncustodial parents such as Father. Therefore, it is immaterial that the court
cited the wrong statute. (In
re Natasha A. (1996) 42 Cal.App.4th 28, 38 [appellate court reviews the
trial court’s ruling, not its reasoning, and may affirm if the ruling is
correct on any ground].)
The applicable provision as to Father is
section 361.2, subdivision (a). That
provision, like section 361, subdivision (c)(1), focuses on detriment to the
child. More specifically, it provides
that if a noncustodial parent “requests custody, the court shall place the
child with the parent 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).)
In
considering the potential for detriment, “the court may consider any jurisdictional
findings that may relate to the noncustodial parent under section 300, as well
as any other evidence showing there would be a protective risk to the child if
placed with that parent.” (
970.) On appeal, we review the evidence in the
light most favorable to the court’s decision to determine whether there is
substantial evidence from which a reasonable trier of fact could find clear and
convincing evidence the child would suffer detriment to his well-being. (In re
Luke M. (2003) 107 Cal.App.4th 1412, 1426.)
In
arguing lack of evidence to support the trial court’s decision, Father asserts
that he had “absolutely nothing to do with the allegations which brought [Amy]
into the dependency system.” However, the
dependency petition alleged both neglect and
failure to protect. Although it was
Mother who was neglecting to care for Amy properly, Father failed to protect
her from that neglect. And this was true
even though in his earliest conversations with the social worker, he admitted
knowing Mother was not caring for Amy adequately.
Granted,
Father’s deportation effectively prevented him from being present in Amy’s
home. However, his deportation followed
on the heels of his own misdoings.
Father has a long history of domestic violence, and by his own
admission, he regularly used marijuana after Amy was born. Not only has his drug use led to various
arrests and convictions, he also told the social worker at one point that a
drunk driving incident played into his deportation. So to say he had absolutely nothing to do
with the conditions that gave rise to Amy’s detention is a bit
disingenuous.
Father
contends it would be purely speculative to think his past problems with
domestic violence and substance abuse might pose problems for Amy if she were
placed in his care. However, as the
trial court observed, the record is replete with instances where Father has
been evasive and misleading about his past criminal behavior. It was entirely reasonable for the trial
court to be concerned about Amy’s safety in light of Father’s repeated efforts
to downplay and minimize both the number and severity of arrests and
convictions he has suffered over the years.
To
Father’s credit, he has expressed a willingness to participate in reunification
services. But like the statements he has
made about his criminal record, Father’s statements about his treatment record
have been have been riddled with inconsistencies. At the beginning of the case, he told the
social worker he had completed a court-ordered domestic violence program prior
to his deportation, but he was unable to provide proof he had actually done
so. Then, a few months into the case, he
claimed he had finished a drug treatment
program in Mexico before admitting he was really only half-way done with
the program. He also said he was
participating in a domestic violence program at that time, but he later
admitted he had not even started that program.
Father’s
statements raise questions about his credibility and commitment to his
treatment program. To make matters
worse, he was slow in terms of providing the social worker with contact
information for his services providers.
He did eventually provide a contact number, but the social worker was
unable to reach any of Father’s providers at that number, despite making
numerous attempts to do so.
Father
suggests the social worker was lax about her responsibilities and should have
done more to facilitate reunification, such as exploring the feasibility of
computer video conferencing between him and Amy. But neither Father nor his attorney ever
asked the social worker to look into that.
And when the social worker did set up a visit for Father and Amy at the
border, it was Father who canceled and asked to have the visit
rescheduled. Throughout the case, the
social worker has consistently
communicated with Father to assess his needs. She has also worked with the Mexican
Consulate and DIF to ensure Father is receiving appropriate services, and she
has jumped
through all the hoops necessary for Amy to obtain a
passport. We are not inclined to lay
Father’s failings at her feet.
Viewing
the record as a whole, and in the light most favorable to the trial court, we conclude
there is substantial evidence to support the court’s finding that vesting
custody of Amy with Father would be detrimental to her well-being. We find no basis for disturbing the court’s
finding in that regard.
DISPOSITION
The
dispositional order of the juvenile court is affirmed.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
IKOLA, J.
name="_ftn1" title=""> [1] Because
Amy’s placement is the only issue in this appeal, facts relating to her
half-siblings will be omitted.
name="_ftn2" title=""> [2] All
further statutory references are to this code.
