In re C.H.
Filed 3/26/13 In re C.H. 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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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 C.H. et al.,
Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY
DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
J.H.,
Defendant and Appellant.
E055651
(Super.Ct.No. RIJ1101468)
OPINION
APPEAL
from the Superior Court of
County. Matthew C.
Perantoni, Temporary Judge. (Pursuant to
Cal. Const., art. VI, § 21.) Affirmed.
Jacob
I. Olson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela
J. Walls, County
Counsel, and Anna M. Deckert, Deputy County Counsel,
for Plaintiff and Respondent.
J.H
(Father) and Je.H (Mother) were involved in a bitter divorce and custody
battle. The
Services (the Department) filed a Welfare and Institutions Code section 300
children, C.H. and N.H., for allegations of abuse, domestic violence between him
and Mother, and substance abuse. At a
jurisdictional/dispositional hearing , the juvenile court found the allegations
in the section 300 petition true, granted reunification services to Father, and
granted custody to Mother on a family maintenance plan. Father appeals that order on the following
basis:
1. The jurisdictional findings under
section 300, subdivisions (b) and (j) that he had committed abuse against C.
causing injury, abused alcohol while caring for the children, and committed
domestic violence were not supported by the evidence.
2. No substantial evidence supported a
finding that C. and N. needed to be removed from his custody to be protected to
support the dispositional order.
3. The juvenile court-ordered case plan
requirements were overly burdensome and contrary to the unique needs of his
family.
I
PROCEDURAL AND
FACTUAL BACKGROUND
A. Detention
Father
and Mother, who had married in 2006, were in the middle of a divorce when the
Department became involved. Father was
the adoptive father of 10-year-old C. and the biological father of 3-year-old
N.
According
to the detention report, on October 19, 2011, a report was received by the
Department that on October 14, Father had hit C. with an open hand while he was
sitting in the back of Father’s truck.
As a result, C. fell back and hit his head on the truck bumper. C. was taken to the emergency room. There were no injuries according to an X‑ray
taken. However, C. was taken to a
chiropractor who had to adjust C.’s hips and back. Mother reported that C. hitting the truck
bumper caused the injuries.
Mother
was also concerned about Father’s drinking.
She additionally reported that she and Father had been involved in
domestic violence during their relationship and that the last incident had
occurred in 2010.
C.
had been living with Father in Riverside, but Mother, who lived in San Diego,
had a visit with C. starting on October 14, 2011, and she had not returned C.
to Father’s care. Mother reported that
she did not want to return C. to Father’s care because C. had bruises on his
neck and because Father hit him.
A
social worker from the Department interviewed C. C. wanted to live with Mother because she was
nicer to him. C. reported that a few
days before, Father had hit N. with a pillow.
Father pushed C. hard enough to make him fall and hit his head against a
wall. C. never wanted to see Father
again. C. was afraid of Father and would
run away if he was returned to Father.
Father called C. a “jerk†when he got mad.
C.
reported that he had seen Father drink beer.
On one occasion, Father had left him and N. with a babysitter while he
went out and drank beer. Father called
the babysitter and asked her to come get him because he could not get
home. At 5:00 a.m., the babysitter took
C. and N. driving around looking for Father.
When they finally brought Father home, C. had to help Father up the
stairs because he was too “dizzy.â€
As
to the incident on October 14, C. stated that he had been sitting on the bumper
of his Father’s truck. Father had closed
the garage door, trying to scare him. C.
got mad and threw a shoe at Father.
Father hit C. on the head, making him fall back, and C. said his head hit the back of the truck.
Mother
claimed to have hospital records showing that she received a bruise on the back
of her neck from Father hitting her.
Mother reported that Father had pushed her down, causing her back to be
re-injured. Father got on her and was
laughing. C. witnessed the event. Mother had been allowing Father to take care
of C. and N. because she had a back injury.
She did not think he would be violent with them.
Since
C. had lived with Father, Mother reported his neck had started making popping
sounds, and he had coughing spells.
Mother had been evaluated in the family law case because a mediator had
reported that she was unstable.
C.
had been diagnosed with attention
deficient disorder (ADHD) and obsessive compulsive disorder (OCD). Medication seemed to be controlling C.’s
symptoms. Mother was taking an
antidepressant. Father had never hit N.
but had cussed at him.
The
social worker went to Father’s home. N.
was in the home. He appeared clean and
had no visible injuries. Father agreed
to talk to the social worker. Father was
upset that C. was not in school. He
reported that C. took medication, but it wore off in the afternoon.
Father
explained that Mother had been with C. on October 14, prior to C.’s baseball
game. She had not fed him, and his blood
sugar was low. C. did not want to go to
the baseball game, but Father had worked hard to get him on the team. When they arrived at the game, C. threw his
shoes at Father. Father told him to
stop, and then C. threw his socks at him.
Father explained that when C. acted like this, Father had to put two
fingers on his face to get him to stop.
Father claimed he tapped C. on the face with two fingers, and C. jerked
his own head back and hit the truck.
Father denied hitting C. to discipline him.
The
social worker advised Father that he wanted C. to stay with Mother until C.
could be medically examined. Father told
the social worker that Mother suffered from anxiety and had borderline
personality disorder. He claimed that
she had supervised visits with C. and N. until only recently because of her
mental health issues.
Father
denied any substance or drug abuse issues.
It was decided between Father and the social worker that N. would stay
with Father and C. would stay with Mother until a medical examination could be
performed. Mother then arrived at the
home with C. C. was crying and
complaining of pain in his neck. The social
worker observed C. crying. In addition,
the social worker saw a swollen section on C.’s neck and it was hot. Mother reported back to the social worker
that C. had two new soft tissue injuries to his neck.
C.
was examined by a doctor on October 21, 2011.
The examining doctor did not discover any “structural abnormality.†There was some tenderness on his neck.
An
interview by the Riverside Child Assessment Team was conducted on October 25,
2011, with C. C. reported instances
where Father hit him on the side of the head, causing him to fall and hit other
objects. He reported that Father hit him
all the time when he got mad. He again
described the events of October 14. C.
added that after he fell on the truck, Father said to him, “You mess with the
bull, you get the horns.†Father was not
going to be arrested because of the lack of findings with the doctor’s examination.
The
investigation continued because of the lack of findings of physical injury to
C. Father insisted he had hired a
chiropractor for C. before the October incident, explaining that C. had a
history of neck problems. Father said he
continued to tap C. on the head to get his attention despite these neck
problems because it was the only way to get his attention.
An
investigation by Dr. Michael Kania, who was appointed by the family court to
evaluate the family, was included in the report. According to the report dated May 22, 2011,
Father described an incident that occurred on March 9, 2010, between him and
Mother. He claimed he and Mother had
separated but that she had been visiting C. and N. during the day. When he returned home, she started poking
him, and he pushed back at her. She
scratched him on the face and chest. He
put her in a “bear hug†and held her on the couch. She bit him to get away. She left before the police came.
According
to Dr. Kania’s report, in June 2010, Father obtained physical custody because
Mother could not care for the boys due to a back injury. Mother also had been hospitalized in June for
a panic attack. Father accused Mother of
not properly supervising the children and of using marijuana. Once Father took custody, Mother started
calling the police accusing him of abusing C.
Father was highly educated and was fully employed with the City of
Riverside. Father denied any substance
abuse problems.
Dr.
Kania determined, based on profile testing, that Father could be hostile,
tense, and agitated if he felt threatened.
He also was manipulative and self‑centered. His profile also suggested chronic abuse of
alcohol.
Mother
was also evaluated. Mother was abused by
her brother from the age of 4 years until she was 28 years old. In 2009, she and Father moved to Riverside
and started having marital trouble.
Mother
suffered a back injury delivering N. In
March 2010, she was upset with Father because she was injured and he would not
get her assistance. She announced that
she was moving to San Diego with her boyfriend.
She informed Father that she was taking C. with her. Father “body-checked†her into a wall. They then slapped each other. He grabbed her and threw her on the
couch. She scratched him to get him off
of her. She exacerbated her back
injury. No arrest was made, as the fight
was mutual. Mother took the boys but
then had panic attacks and had to send them back to Father. Mother admitted using marijuana regularly to
help her with pain. Mother took
antidepressants and had received counseling for anxiety.
An
evaluation showed that she was repressed and over-controlled. She had a low tolerance for frustration.
Mother
reported that Father did not keep the children clean and well groomed. C. had reported to Mother that Father was
hitting him and called him a “piece of shit.â€
At the time of the evaluation, Mother could not take the children full
time because she still needed to heal.
Mother wanted C. and N. to live with her during the week and with Father
on the weekends.
C.
reported to Dr. Kania that Father was “mean.â€
He said that Father and Mother had separated because Father beat Mother
up. Father hit him on the side of the
head when he did not listen.
Dr.
Kania concluded that it did not appear that Father suffered from substance
abuse problems despite the profile suggesting substance abuse. Mother might have difficulty taking care of
both boys by herself. Dr. Kania
recommended that C. and N. remain in Father’s custody but that visits with
Mother and the children no longer needed to be supervised. Mother should have visitation every other
weekend and every other week during the summer.
On
August 22, 2011, a supplemental evaluation report was filed by Dr. Kania. Father reported that he believed Mother
suffered from a personality disorder, and he was concerned she could not care
for the children. Mother was attending
therapy. She had recovered from her back
injury and was taking anti-anxiety medication.
Father felt that C. was benefitting from regular visits with
Mother. Overall, Dr. Kania thought the
family was doing better, and C. was improving.
Dr. Kania recommended again that the children stay in Father’s
custody. Weekend visits with Mother
would continue.
There
were eight prior referrals for the family starting in April 2010. The first report was by C.’s school. C. claimed Father made him get ready by
himself and take his own medication. C.
claimed Mother was afraid of Father because he had a gun. The referral was unfounded. Another referral for bruises on C.’s legs was
reported to be from a classmate. On May
18, 2010, C. did not take his ADHD medication because he claimed Father was not
home in the morning. No disposition was
noted.
On
August 8, 2010, there was a referral wherein it was reported that C. did not
want to return to Father’s care. C.
claimed Father slapped him as discipline and made him sleep on the floor. An investigation showed that C. was seeking
to spend more time in Mother’s custody.
No marks or bruises were found on C.
The allegations of neglect and physical abuse were unfounded.
On
August 14, 2010, there was a report of neglect because Father left C. at home
alone for one hour while at the store.
Father admitted leaving C. alone but nothing was filed. On September 9, 2010, it was reported that
Father was under the influence when he picked C. and N. up from visitation with
Mother. Father had beer cans in the
car. The results of an investigation
were inclusive. On April 4, 2011, Mother
reported physical abuse of C. C.
complained that Father hit him when disciplining him. Since there were no marks or bruises, the
allegations were unfounded.
On
November 3, 2011, the Department received a report from the chiropractic radiologist
and chiropractic specialist wherein it was shown that new injuries were
reported after the October 14 incident involving the truck. According to a chiropractic radiology report,
on July 14, 2011, C. did have trauma to his cervical spine. However, on October 20, 2011, he had a new
injury. The chiropractor reported that
C. had been seen between July 14 and October 10, 2011, and his condition
appeared to be improving. However, on
October 17, his condition had “drastically worsened.†C. needed regular care for muscle pain from
the chiropractor.
C.
and N. had been placed with Mother since November 3, 2011. The Department felt that there was physical
abuse of C. by Father despite no marks or injuries being found in the
past. Further, there clearly had been
some sort of domestic violence in the home.
Father continued to deny that he used unnecessary force with C. The Department felt the neck injury to C. was
real. N. was also at risk of abuse if
left in Father’s custody.
On
November 7, 2011, the Department filed a section 300 petition against
Father. C. and N. were detained from
Father only. It alleged a failure to
protect under section 300, subdivision (b).
An allegation under b-1 was “[t]he father disciplines the child, [C.],
inappropriately, with the most recent incident occurring on or about October
19, 2011, [sic] wherein the father struck the child on the head causing the
child to hit the back of the truck, resulting in injuries to the child’s
neck. Further, the father curses at the
child and calls him inappropriate names.â€
Under allegation b-2, it was alleged that Father “abuses alcohol and
supervises the children while under the influence.†Allegation b-3 alleged fact that Mother and
Father had “a history of engaging in domestic violence disputes.†Allegation b-4 stated, “[t]he father has been
offered pre-placement preventative services, including, but not limited to[,]
several referrals to address issues of substance abuse. The father has failed to benefit from prior
interventions as he continues to abuse alcohol.†It was alleged as to N. under section 300,
subdivision (j) as follows: “The child’s
sibling, [C.], has been abused and neglected as described in subdivision 300(b)
of the Welfare and Institutions Code, and there is a substantial risk that this
child will be abused or neglected, as defined in th[at] subdivision[].â€
A
hearing was held on November 8, 2011.
The juvenile court found a prima facie case and ordered that C. and N.
remain in Mother’s custody. Both Father
and Mother declared they had no Indian ancestry. At the hearing, Father requested that the
family law orders ‑‑ which gave him custody with Mother
granted visitation ‑‑ be reinstated. Mother had mental health problems (as
evidenced by Dr. Kania’s evaluation) and was influencing C. Mother insisted that she had a poor
evaluation by Dr. Kania because she had a severe back injury that was impacting
her mental abilities. The court referred
to both Dr. Kania’s reports and recognized that they recommended that C. and N.
be placed with Father. The juvenile
court stated that it had “great concern regarding the well[-]being of these
children.†The juvenile court did not
think there was enough evidence to detain the children from Mother. The reasons for detention were primarily
Father’s physical abuse of C. Father was
granted regular and frequent visitation.
The juvenile court ordered that the Department have an independent
chiropractor evaluate C. for injuries.
B. Jurisdictional/Dispositional
Reports
In
a jurisdictional/dispositional report filed on December 1, 2011, the Department
recommended that C. and N. remain in the custody of Mother. Father would be given reunification services
and Mother would be on family maintenance services. The case would be transferred to San Diego
County for all further proceedings because Mother resided in that County.
C.
was interviewed on November 23, 2011. N.
was also present during the interview.
C. appeared calm and reserved and played with N. appropriately. C. was having no neck pain. C. expressed that he was afraid of
Father. He was afraid Father would hit
him again. The last time that Father had
hit him was when he hit his head on the truck.
However, C. enjoyed the visits with Father. C. said that Father was mean when he was
drinking beer. C. wanted to live with
Mother.
Mother
was interviewed the same day. After the
incident with the truck, C. continued to complain of neck pain, so she took him
to the chiropractor. C. had told Mother
that Father had called him “a piece of shit†and “fucking idiot.†Father had told C. that Mother was mentally
ill during visitation.
Mother
claimed that Father drank every day they were together and increased his drinking
when they separated. She claimed Father
drank in the car while driving the children.
Mother denied any domestic violence during the marriage except for the
incident in 2010. Mother did not believe
that Father was abusive to N.
Father
had asked the Department to have C. see a specialist, not a chiropractor, to
examine his neck injury. Father was
interviewed on November 29, 2011, regarding the allegations in the
petition. As to the allegations against
him, he admitted that he cursed on occasion in front of C. and N., but it was
not directed at them. Father maintained
that he only tapped C. on the face on October 14 to get his attention, and C.
jumped back and hit his head on the truck.
Father denied he abused alcohol and was always sober when driving the
children. As for
altercation, but Mother bit him and scratched him. The police were called but there were no
charges because they both had marks on their bodies. He claimed he had only been told to
participate in coparenting classes, and he had completed those classes. He “100%†would not hurt N.
A
nanny hired by Father spoke with the social worker. She had never seen C. be afraid of
Father. She claimed that C. had injured
his neck at hockey camp. C. had never
told her that Father was hitting him.
Mother’s
psychiatrist denied that Mother had any
adjustment disorder, which was evidenced by disturbances of emotion and
conduct. C. was also suffering from some
depression.
The
Department stated that defendant would benefit from therapy, a parenting
education program, and a substance abuse
treatment program. Mother had a
medical marijuana card for treatment of pain, but she had not used it in three
months. Mother had left Father because
she started having an affair with his boss.
Mother lived with Father’s boss, and he supported the children.
C.
did not appear to have any developmental delays. He appeared to have only behavioral
issues. N. appeared to have some speech
delays. C. reported that visits with
Father had not involved any problems. A
social worker believed that Mother was willing to work for joint custody with
Father. However, there was a concern
that he was extremely vindictive and
retaliatory. Father appeared to have
lost control because of the affair and C.’s behavioral problems. He needed to continue to receive
therapy.
An
addendum report was filed in anticipation of the contested jurisdictional/dispositional
hearing. On December 14, 2011, a social
worker from the Department met with Mother, C., and N. at their home. C. and N. reported that the visits with
Father were going well, and they felt safe in his home. C. had recently been diagnosed with post
traumatic stress disorder (PTSD) after witnessing the domestic violence
incident occurring between Mother and Father and because of Father hitting
him. C. had been given new medication
for his ADHD and his behavioral problems, and he was doing well on the
medication. Mother reported that Father
continued to make derogatory comments about her to C. and N. during
visits. Mother had C. see another
chiropractor, who made the same diagnosis of whiplash and neck injury.
The
incident involving Father and C. hitting the truck was being forwarded to the
district attorney’s office for prosecution.
The detective in charge of the investigation was not sure if criminal
charges would be filed due to the conflicting medical records. C.’s pediatrician reported that there was no
new injury from the incident, but the chiropractor stated that there was a new
injury. As of January 3, 2012, there had
been no case filed against Father.
C. Contested
Jurisdictional/dispositional Hearing
At
the contested hearing conducted on January 11, 2012, a first amended petition
was filed. It was amended to exclude the
allegation that Father cursed at C. and called him inappropriate names. The Department submitted on the detention,
jurisdictional/dispositional, and addendum reports. Both Mother and Father continued their
denials of the petition. Father had no
placing C. and N. with Mother. He also
objected to the case being transferred to San Diego.
The
juvenile court had reviewed all of the reports.
It found the allegations under section 300, subdivision b to be true for
C., and under subdivision (j) true for N., by a preponderance of the
evidence. C. and N. were to stay in the
custody of Mother and she was to participate in family maintenance services.
The
case was transferred to San Diego Superior Court since Mother had moved to that
location. Father appeals from the
jurisdictional/dispositional order.
II
DEPENDENCY
JURISDICTION
Father
contends the evidence was insufficient to support the jurisdictional findings
under the section 300, subdivisions (b) and (j) allegations in the
petition.
Section
300 provides that “[a]ny child who comes within any of the following
descriptions is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court . . . .†Subdivision (b) supports jurisdiction if “[t]he
child has suffered, or there is a substantial risk that the child will suffer
serious physical harm or illness, as a result of the failure or inability of
his or her parent or guardian to adequately supervise or protect the child . .
. .†Subdivision (j) provides for
jurisdiction if the “child’s sibling has been abused or neglected, . . . and
there is a substantial risk that the child will be abused or neglected . . .
.â€
“‘“A
dependency proceeding under section 300 is essentially a bifurcated
proceeding.†[Citation.] First, the court must determine whether the
minor is within any of the descriptions set out in section 300 and therefore
subject to its jurisdiction.’
[Citation.] ‘“The petitioner in a
dependency proceeding must prove by a preponderance of the evidence that the
child who is the subject of a petition comes under the juvenile court’s
jurisdiction.â€â€™ [Citation.] ‘The basic question under section 300 is
whether circumstances at the time of the hearing subject the minor to the
defined risk of harm.’ [Citation.]†(In re
A.S. (2011) 202 Cal.App.4th 237, 243-244.)
We
review the court’s jurisdictional order for substantial evidence. “Substantial
evidence is evidence that is ‘reasonable, credible, and of solid value’; such
that a reasonable trier of fact could make such findings. [Citation.]
[¶] It is axiomatic that an
appellate court defers to the trier of fact on such determinations, and has no
power to judge the effect or value of, or to weigh the evidence; to consider
the credibility of witnesses; or to resolve conflicts in, or make inferences or
deductions from the evidence. We review
a cold record and, unlike a trial court, have no opportunity to observe the
appearance and demeanor of the witnesses.
[Citation.] ‘Issues of fact and
credibility are questions for the trial court.’
[Citations.] It is not an
appellate court’s function, in short, to redetermine the facts.†(In re
Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) “Under the substantial evidence rule, we
‘must accept the evidence most favorable to the order as true and discard the
unfavorable evidence as not having sufficient verity to be accepted by the
trier of fact.’ [Citation.]†(In re
S.A. (2010) 182 Cal.App.4th 1128, 1140.)
Father
first contends that the evidence was insufficient to support the b-1 and j-1
allegations that were based on the incident occurring on October 14. He complains that the evidence was
contradicted and that the Department never obtained an independent evaluation. He points to the X-rays and medical opinions
that no injury occurred. He insists that
the chiropractors were hired by Mother and the date of the evaluations is
unclear.
Here,
at the time of the jurisdictional hearing, a detective involved in the
investigation of the events on October 14, had referred the matter to the
district attorney’s office for possible prosecution. Although the investigating detective was not
sure if charges would be filed because of the contradictory medical reports,
there was enough evidence to refer it to the district attorney’s office. C. and Mother were consistent that Father hit
him, and he fell on the truck bumper.
Father
complains that “every single medical and psychological doctor noted in this
case, with the exception of chiropractors retained by mother, agreed there was
nothing to suggest [C.] ever suffered physical abuse or injury to his neck at
the hand of [Father].†He denies that
the testimony by C. or Mother was enough to support the allegation. However, the juvenile court could find that
Mother and C. were credible. “The testimony
of a single witness is sufficient to uphold a judgment [citation], and an
appellate court may not evaluate that testimony as a basis for reversal.†(Sheila
B., supra, 19 Cal.App.4th at p. 200.)
The juvenile court could find by a preponderance of the evidence,
relying upon the statements of C. and Mother, and the records from the
chiropractors, that Father hit C. on October 14 and caused injury to his
neck. This allegation supported the
jurisdictional finding by the juvenile court.
Moreover,
despite the fact that N. had not been harmed by Father, a finding that Father
hit C. and caused him injury certainly put N. at risk of the same action by
Father. It is apparent Father lost
control when he hit C. and the juvenile court could reasonably be concerned N.
was at risk.
Father
also alleges that there was not sufficient evidence of the b-2 and b-4
allegations that he had a substance abuse history. Again he claims the only evidence supporting
the allegations was unsupported testimony from C. and Mother. Father additionally contends the allegation
under b-3 ‑‑ that there was a history of domestic
violence ‑‑ was not supported by the evidence. There was only one conflict in 2010, which
did not present a substantial risk of harm to C. and N. at the time of the
jurisdiction hearing.
“[A]n
appellate court may decline to address the evidentiary support for any
remaining jurisdictional findings once a single finding has been found to be
supported by the evidence. [Citations.]†(In re
I.A. (2011) 201 Cal.App.4th 1484, 1492; In
re Shelley J. (1998) 68 Cal.App.4th 322, 330 [“[s]ection 300 contemplates
that jurisdiction may be based on any single subdivisionâ€].) Since we have found the juvenile court had
dependency jurisdiction based on the October 14 incident, any discussion of the
remaining allegations would be purely academic.
(See I.A., at p. 1492.) Here, the evidence that Father had physically
abused C. supported the jurisdictional finding and we need not address the
remaining allegations.
III
DISPOSITIONAL
ORDER
Father
also claims about the dispositional order removing C. and N. from his care and
placing them with Mother because there was no substantial evidence that C. and
N. needed to be removed from his custody to be protected. He insists that even if there was one
incident where he “allegedly†struck and injured C. during an argument, there
was no evidence at the time of the disposition hearing that there was any risk
of future harm to C. or N. if they were in his care.
“‘After
the juvenile court finds a child to be within its jurisdiction, the court must
conduct a dispositional hearing.
[Citation.] At the dispositional
hearing, the court must decide where the child will live while under the
court’s supervision.’ [Citation.] ‘A removal order is proper if based on proof
f a parental inability to provide proper care for the child and proof of a
potential detriment to the child if he or she remains with the parent. [Citation.]
“The parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate.
The focus of the statute is on averting harm to the child.†[Citation.]
The court may consider a parent’s past conduct as well as present
circumstances.’ [Citation.]†(In re
A.S., supra, 202 Cal.App.4th at p. 247.)
“‘“Before
the court issues a removal order, it must find the child’s welfare requires
removal because of a substantial danger, or risk of danger, to the child’s
physical health if he or she is returned home, and there are no reasonable alternatives
to protect the child.â€â€™
[Citations.] ‘Whether the
conditions in the home present a risk of harm to the child is a factual
issue.’ [Citation.] The court’s dispositional finding is also
subject to a sufficiency of the evidence standard of review. [Citation.]â€
(In re Lana S. (2012) 207
Cal.App.4th 94, 105; see also § 361, subd. (c)(1).)
Here,
Father had hit C. in the head, causing him to fall backward and hit his head on
the bumper of the truck. Father
continued to use a method of tapping C. on the face to get his attention and
denied any wrongdoing. C. reported other
incidents where Father had hit him. C.
was afraid to return to Father’s custody since he believed that he may hit
him. C. was diagnosed with having PTSD
due to Father hitting him. Although Dr.
Kania had suggested that C. and N. live with Father, these evaluations were
conducted prior to the incident on October 14.
Based
on the foregoing, the juvenile court could properly determine that the welfare
of the children required removal from Father’s custody because of a risk of
danger to their physical health if they returned home, and custody with Mother
would protect the children. (
p. 105.) This finding was supported by
substantial evidence.
IV
CASE PLAN
Father
also contends that his case plan ‑‑ which required him to
participate in general counseling to address substance abuse, comply with a
substance abuse assessment and the recommended treatment, and participate in
random drug testing ‑‑ was overly burdensome and was in
error because there was no evidence that he had a problem with drugs and
alcohol.
A
social worker met with Father on November 28, 2011, to develop his case
plan. Father told the social worker that
he was already seeing a therapist. He
agreed to be referred to a parenting education program. Father also said he would participate in
substance abuse treatment services and participate in random drug testing. A case plan was attached to the report. It included counseling to address
coparenting, stress reduction, and anger management; parenting education;
abuse testing.
At
the time of the jurisdictional/dispositional hearing, Father was granted
reunification services and ordered to complete his case plan. The juvenile court signed the case plan. There was no objection by Father.
According
to the record, Father consented to the case plan and failed to object to the
reunification service plan ordered by the juvenile court at the
jurisdictional/dispositional hearing. As
such, Father waived his claims that his case plan was overly burdensome or
inappropriate. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1476;
404, 416.) We will not address the
issue, as Father could have easily resolved the issue in the lower court, or
had the juvenile court explicate its reasons for imposing a substance abuse and
random drug testing requirement, which would provide for more meaningful review
by this court. As it stands, with
Father’s failure to object and in fact to consent to the plan, he cannot now
complain.
V
DISPOSITION
The
orders of the juvenile court are affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.
J.
KING
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
