In re
James S.
Filed 12/5/12 In re James S. CA3
NOT TO
BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Calaveras)
----
In re JAMES S. et al., Persons Coming
Under the Juvenile Court Law.
CALAVERAS WORKS AND HUMAN SERVICES
AGENCY,
Plaintiff
and Respondent,
v.
MARK S.,
Defendant
and Appellant.
C068392
(Super. Ct. Nos.
10JD5106, 10JD5107)
S. (father) appeals from the juvenile court’s judgment continuing the placement
of minors James S. and Jonathan S. in the custody of Tiffany T. (mother) and
terminating the dependency, and from the court’s exit order denying visitation
to father. ( ADDIN BA xc <@st> xl 35 s RPQIFD000001 xpl 1 l
"Welf. & Inst. Code, §§ 361.2, 362.4" Welf. & Inst. Code, §§ 361.2, 362.4.)
court should have retained jurisdiction because the minors’ “drug use,
educational struggles, and unrepaired relationship with father†established a
need for continued supervision. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
<@osdv> xl 11 s RPQIFD000010 l "section 300" section 300 petitions as to the 14-year-old minors,
alleging: Father had a history of
physically abusing the minors, most recently by breaking Jonathan’s collarbone
and then failing to provide him with medical attention. Father also had a history of domestic
violence with the minors’ mother and stepmother. The minors feared further physical abuse if
returned to father’s custody.
According to the
stepmother, who were separated and getting a divorce, had been sharing physical
custody of the minors. Father claimed he
had been wrongly blamed for disciplining the minors, who were out of control.
The jurisdiction/disposition report recommended placing
the minors with mother, offering her family maintenance services, and offering
father reunification services. ( ADDIN BA xc <@osdv> xl 21 s RPQIFD000011 xpl 1 l
"§ 361.2, subd. (b)(3)" § 361.2, subd. (b)(3).)
Court supervision for mother was advised because she had a history of
alcohol abuse.
After her short-lived marriage to father, mother had
married David T. and now lived with him and his son in Copperopolis (Calaveras County). She shared legal
custody of the minors with father and had had regular visits with them.
The minors wanted to live with mother and only to visit
the stepmother and father. James
complained father was calling and texting the minors, trying to pressure them
to “get over it.â€
The minors were failing most of their classes. They acted aggressively and defiantly at
school, and James had possessed marijuana with intent to sell. If not for their domestic situation, the school
would have expelled them.
Jonathan said he was held back in school because his
troubles at home had caused his grades to fall.
The minors were in counseling, but father did not want to pay for
it.
Father wanted to start
[were] the problems.â€
On March 29, 2010, the juvenile court in Alameda County
ordered the minors detained and placed with mother immediately.
On April 22, 2010, at the jurisdiction/disposition
hearing, father submitted on jurisdiction and disposition, requesting only
supervised visitation. The court
sustained the allegations of the ADDIN BA xc
<@$osdv> xl 11 s RPQIFD000010 section 300 petitions, placed the minors with mother under
dependent supervision, ordered family maintenance services for mother and
reunification services for father, and ordered “therapeutic visitationsâ€
between the minors and father to occur at Social Services’ discretion after
consultation with the minors’ therapist, father’s therapist, and father’s
counsel.
The six-month status review report recommended continuing
the existing placement and services and transferring the case to Calaveras
County.
Mother engaged in individual and family therapy and drug
tested negative. She showed appropriate
parenting skills and discipline. She
ensured the minors would be assessed for an Individual Educational Plan
(IEP). The minors felt safe in her
home.
Father was charged with three felonies arising out of the
incident that led to the dependency.
Father had completed a
control and domestic violence programs, and was engaged in individual therapy;
his counselors and therapist reported he had made progress. He said he wanted healing in the family and
would support coparenting with mother.
Father had no in-person visitation with the minors, as he
requested. The minors, who were still
upset about father’s behavior toward themselves and others, did not want to see
him.
The minors, father, and their therapists spoke by
telephone conference call in September 2010.
One of the minors’ therapists, John Pool, said the minors expressed
their anger toward father, who stayed mostly calm. Both of the minors’ therapists (Pool and
Dennis Carmona) opposed in-person visits by father at this time because the
minors would not feel safe with him.
On October 7, 2010, the juvenile court ordered the matter
transferred to Calaveras County, which accepted the transfer on October 26,
2010.
The status review report, filed March 11, 2011,
recommended terminating father’s reunification services, terminating
jurisdiction, and dismissing the dependency, with legal and physical custody of
the minors granted to mother.
The minors adjusted well to living with mother, had
reestablished their relationship with her, and bonded with her. Mother actively participated in individual
and family counseling, fully complied with her case plan objectives, and
demonstrated she could meet the minors’ physical, educational, and emotional
needs. The minors were participating in
counseling and appeared to benefit from it.
The minors continued to struggle in school: Jonathan was failing most of his courses in
the most recent quarter, and James was failing English and algebra. Mother was working with their school to try
to establish IEPs for them.
Jonathan had
Hyperactivity Disorder (ADHD), which impaired his ability to focus; mother was
consulting his counselor and doctor about medication. Jonathan felt anxious about testifying
against father in the upcoming
Father continued to deny any responsibility for breaking
Jonathan’s collarbone. In a recent
telephone conversation with the social worker, father said he was “not going to
condone [the minors’] lying.†Because
father provided no signed releases for his temper control, counseling, and
domestic violence programs, he was not in compliance with his case plan. He still wanted visitation with the minors,
but the minors did not, and their therapist thought they were not emotionally
ready for it.
An addendum report filed March 25, 2011, informed the
juvenile court that therapist Pool believed father should not receive further
reunification services because he had not acknowledged his “errant behaviorâ€
toward the minors and blamed others for his own misconduct.
Pool’s attached report noted the minors lacked the
academic tools to succeed in school, partly because father had not participated
in their education. The minors saw
themselves as academic “ ‘losers’ †and “ ‘f**k-ups.’ †They had been diagnosed with ADHD, which is
often linked with “Oppositional Defiant Disorder†and substance abuse; medication,
which had never been tried consistently before, was being explored as an
option. Mother and the school counseling
staff were working together to put together IEPs, which were not established in
the minors’ first semester at their new school.
According to Pool, mother worked hard to parent the
minors, despite stress due to illness, financial strains at home, and pressure
at work. The minors felt far more
security and safety in her home than ever before.
Before the case was transferred to Calaveras County,
father made clear to Pool in telephone conversations that he saw himself as the
victim and the minors as the offenders.
An addendum report filed April 18, 2011, noted father
finally provided signed releases and his service providers’ reports showed
moderate progress with temper control, counseling, and domestic violence;
however, he recently violated the stepmother’s restraining order against him.
letter about his history of domestic violence with father, which included the
statements, “This isn’t even half of the stories I could tell you about the
abuse,†and, “I do not want to live with my dad.â€
The contested 12-month hearing took place on April 21 and
28, 2011. Social worker Tamara Davis,
therapist Pool, and James testified.
Davis testified mother was meeting all of the needs of
the minors and there were no concerns about her ability to continue to do
so. The minors were happy living with
her. They opposed any contact with
father because they feared him and felt unsafe with him. Father said he did not mean to harm Jonathan
in the incident that led to the dependency.
Father showed no remorse after injuring Jonathan, instead he blamed
Jonathan for defiantly instigating the incident. Based on father’s recent outburst in court
and his violation of a restraining order, Davis concluded father could not yet
apply what he had learned in services outside the treatment setting.
Davis also testified the minors told her they had
experimented with marijuana with their “sister†and friends in the Bay
Area. Davis did not know whether the
marijuana use had continued, but she did not think the minors displayed the
characteristics of habitual users. Davis
did not know whether the minors had excessive absences in school, or whether
the issue of medication for the minors’ ADHD had been followed up on.
Pool, a licensed marriage and family therapist, testified
he saw each minor for approximately 40 hours over the last year, and had also
seen mother in family counseling. In
general, mother followed Pool’s recommendations and reported back to him on the
success or failure of the recommendations.
The minors suffered primarily from
Disorder (PTSD), associated with “oppositional defiance,†brought on
by the incident in which father broke Jonathan’s collarbone; they also suffered
from ADHD, dysthymia (low-grade depression), anxiety, and (in Jonathan’s case)
“explosive disorder.†PTSD was a strong
factor in causing the minors’ behavior problems and poor grades in school.
Pool thought medication should be used to treat the
minors’ ADHD, even though it had not worked before. Numerous drugs had not been tried yet, and
those that were tried were not properly monitored.
The minors told Pool about their use of marijuana; they
did not say they used any other substances.
James said he recently used it seven or eight times, then went two or
three weeks without it, “trying to . . . cope with everything without
it.†In Pool’s opinion, they were using
marijuana to self-medicate. Pool
directed them to his cotherapist to work on that issue.
According to Pool, the minors said father was emotionally
as well as physically abusive: he
deprived them of basic needs, tried to keep them isolated, and was generally
unpredictable. This upbringing led them
to take normal adolescent tendencies toward seeking freedom and rebelling
against authority to an extreme.
However, they were now in a healthier psychological situation, thanks to
mother’s parenting.
The minors wanted to stay with mother. Pool felt very strongly that would be best
for them. Mother could provide for their
psychological needs and knew where to go for help. She was actively involved with instructors
and school administrators to deal with the minors’ educational needs.
The minors felt no attachment to father. Even hearing his voice on the telephone
caused them great discomfort. They would
not feel safe with him even in a supervised visit. They would perceive a court order for
visitation as “revictimization.â€
James testified he witnessed the incident in which
Jonathan’s collarbone was broken. After
a conflict between father and Jonathan about using a house phone, father
grabbed Jonathan by the neck, lifted him, and slammed him to the floor,
knocking him unconscious for a few seconds.
While he was on the floor, father kicked and punched him. Father then looked at James and said, “[D]o
you want some?â€
misshapen and he was in a lot of pain, but father refused to take him to the
hospital and told him to stop crying.
The next day, which was a school day, Jonathan got out of the car to go
straight to the office to tell about what had happened; father told James to
watch after Jonathan and make sure he did not “do anything stupid.â€
Since then, according to James, father has never admitted
responsibility for breaking Jonathan’s collarbone. During their one telephone conversation,
father avoided the subject. James did
not want to see him or talk to him even in supervised visits; James would not
feel safe around him. Because of all
that father had put the minors and other family members through, James wanted
nothing more to do with him.
James testified that he had recently smoked marijuana
probably seven or eight times; the last time was three weeks ago. He did not smoke it at home. He had used it because he was “really stressed
out,†but did not think he was addicted to it or needed treatment; he had
quit.
After hearing argument, the juvenile court found and
ruled:
The question at issue was whether there was a continuing
need for dependency, not whether father could reunify with the minors. Because the minors could safely be returned
to the home of mother, there was no further need for dependency, and father’s
services (even though he had made adequate progress) were terminated. Finally, father would not receive visitation
because it would be detrimental to the minors:
they feared him with good reason and would soon have to testify against
him in a criminal trial.
DISCUSSION
jurisdiction because continued supervision was needed “to address the minors’
use of illegal drugs,†“to address the minors’ educational struggles,†and “to
repair the minors’ damaged relationship with father.†We disagree.
This case comes under ADDIN BA xc
<@$osdv> xl 13 s RPQIFD000013 section 361.2 because mother originally received custody of
the minors as the nonoffending, noncustodial parent. As authorized under that statute, the
juvenile court provided mother with
services and father with reunification services. ( ADDIN BA xc <@$osdv> xl 21 s RPQIFD000011 xpl 1 § 361.2, subd. (b)(3).)
When the court has so ordered, it must determine at subsequent review
hearings which parent, if either, shall have custody of the child. ( ADDIN BA xc <@$id> xl 5 s ID xpl 1 Ibid.; ADDIN BA xc <@cs>
xl 48 s RPQIFD000002 xhfl Rep xpl 1 l "In re Janee W.
(2006) 140 Cal.App.4th 1444, 1451.) In
deciding whether to terminate jurisdiction under ADDIN BA xc
<@$osdv> xl 13 s RPQIFD000013 section 361.2, the court must determine whether there is a
need for continuing supervision; if not, the court may properly terminate the
dependency. ( ADDIN BA xc <@$cs> xl 49 s RPQIFD000002 xhfl Rep
xpl 1 In re Janee W., supra,
140 Cal.App.4th at p. 1452.)
We normally review the juvenile court’s decision to
terminate a dependency for abuse of discretion.
xpl 1 l "In re J.S.
196 Cal.App.4th 1069"
1082; ADDIN BA xc <@cs> xl 60 s
RPQIFD000004 xhfl Rep xpl 1 l "Bridget
A. v. Superior Court
Court (2007) 148 Cal.App.4th 285, 300; ADDIN BA xc
<@cs> xl 49 s RPQIFD000005 xhfl Rep xpl 1 l "
Cal.App.4th 1124"
1124, 1135.) We conclude the court did
not abuse its discretion by finding that there was no need for continuing
supervision.
Citing ADDIN BA xc <@$cs>
xl 52 s RPQIFD000005 xhfl Rep xqt In re Austin P.,
supra, 118 Cal.App.4th at page 1134, for the proposition that jurisdiction
must continue “where a child has not clearly stabilized under a new placement
order,†father asserts that the minors’ use of marijuana and difficulties in
school up to the time of the 12-month hearing showed continuing supervision was
needed. We are not persuaded.
First, ADDIN BA xc
<@$cs> xl 15 s RPQIFD000005 In re Austin P. does
not state the broad rule asserted by father.
the facts presented, that substantial evidence supported the Agency’s
recommendation for continuing supervision because the minor was transitioning
into the home of his father, whom he had seen only sporadically over the past
10 years, and was more closely bonded with his mother even though she had
physically abused and neglected him. ( ADDIN BA xc <@$id> xl 14 s ID xhfl Rep xpl 1 In re Austin P.,
supra, 118 Cal.App.4th at p. 1134.)
Since no similar facts exist here and the Agency did not recommend
continuing supervision, ADDIN BA xc
<@$cs> xl 15 s RPQIFD000005 In re Austin P.
does not assist father.
Second, the juvenile court was within its discretion to
conclude, based on all the evidence before it (including the opinions of social
worker Davis and therapist Pool), that with the help of the minors’ therapists,
teachers, and school counselors, mother could adequately cope with the minors’ problems.
In particular, the court could reasonably have concluded that once the
minors had achieved stability in mother’s custody (as they were well on the way
to doing), received medication for their ADHD, and undergone further therapy
for their other psychological problems, their drug use and academic
difficulties would be resolved.
But even if such problems might continue, that
possibility alone would not justify continuing court supervision. Minors in the juvenile dependency system, as
here, have often suffered grave injuries arising out of years of parental abuse
and neglect. Such injuries usually
cannot be entirely healed in six or 12 months.
Thus, the test for whether a dependency should continue cannot be
whether the minors’ problems have already been solved. The only purpose of maintaining jurisdiction
over a parent who received custody in the first place under ADDIN BA xc
<@$osdv> xl 13 s RPQIFD000013 section 361.2 is the need for further maintenance services
to assist that parent, in this case, mother.
shown no such need.
Father points out that a minor’s ingestion of drugs or
lack of education can constitute harm to the minor for purposes of ADDIN BA xc
<@$osdv> xl 11 s RPQIFD000010 section 300. (Cf. ADDIN BA xc
<@cs> xl 45 s RPQIFD000007 xhfl Rep xpl 1 l "
Cal.App.4th 377" In re Janet T. (2001)
93 Cal.App.4th 377, 389; ADDIN BA xc
<@cs> xl 44 s RPQIFD000008 xhfl Rep xpl 1 l "
Cal.App.4th 814" In re Rocco M. (1991)
1 Cal.App.4th 814, 825.) However, the
issue here is not what is required for the juvenile court to
<@$osdv> xl 11 s RPQIFD000010 section 300, but what is required for the court to
<@$osdv> xl 13 s RPQIFD000013 section 361.2.
Father’s cited cases are therefore inapposite.
Lastly, father asserts that continuing supervision was
needed “to repair the minors’ damaged relationship with [him].†His argument here appears to be mainly a
complaint about his failure to receive visitation, which comes too late because
he never contested the original visitation orders. So far as father means that the court should
have maintained jurisdiction indefinitely on the vague hope that the minors
would someday change their minds about wanting to see him, he cites no
authority holding that a juvenile court may properly maintain jurisdiction for
such a purpose, and we know of none.
To put it another way, it is not the juvenile court’s
duty to repair the damage a parent’s abuse has done to his relationship with
his children. The court’s duty is to
“provide maximum safety and protection for children who are currently being
physically, sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and emotional
well-being of children who are at risk of that harm.†( ADDIN BA xc <@osdv> xl 7 s RPQIFD000014 xpl 1 l
"§ 300.2" §
300.2.) It is true that in carrying out
this role “[t]he focus shall be on the preservation of the family as well as
the safety, protection, and physical and emotional well-being of the child†( ADDIN BA xc <@$id> xl 5 s ID xpl 1 ibid.), but this
does not require the court to square the circle by trying to “repairâ€
parent-child relationships that are irretrievably broken. The court here properly focused on preserving
that part of the family which could be preserved: mother’s relationship with the minors. That was sufficient.
DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
BUTZ , J.
DUARTE , J.
name="_ftn1" title="">[1] Further undesignated
section references are to the ADDIN BA xc
<@ost> xl 29 s RPQIFD000009 l "Welfare and Institutions
Code" Welfare and Institutions
Code.
name="_ftn2" title="">[2] Mother was arrested in 1999 and convicted of DUI. She admitted being drunk once in 2009 while
Jonathan was visiting, but said it was an isolated incident and nothing had
happened since then.
James originally said he did not
like visiting mother and felt she was “not a good influence†because of her
substance abuse arrest. Later, however,
he said she had changed, was not drinking anymore, and was acting more like a
parent than before.
