In re R.S.
Filed 1/30/14 In re R.S. CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re R.S. et al., Persons Coming Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and
Respondent,
v.
M.S.,
Defendant and Appellant.
A138168
(
Super. Ct. Nos. J186356,
J186357 & OJ12020117)
Michael S. (father) appeals from a
361, subdivision (c)(1),
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removing his children from his custody and placing them with their paternal
grandmother. Father does not contest the
dependency court’s finding of jurisdiction under section 360, subdivisions (b)
and (c), acknowledging there “may have been sufficient evidence to support
insufficient to additionally support the removal order. We affirm.
On December 18, 2012, the County filed a dependency petition under section 300,
subdivision (b), alleging failure to protect three siblings, R.S., L.S. and
M.S., in the face of domestic violence
against mother, mother’s absence from the household, and father’s untreated
mental health issues. The petition also
alleged, under subdivision (c), serious emotional damage as a result of
father’s abusive conduct, mother’s leaving the house, and the children’s 19-year-old
half brother taunting them that their mother was going to jail and threatening
to kick them out of the house. The
children were taken into immediate protective custody and placed in foster
care.
The petition was precipitated by an
alteration between mother and father on December 1, 2012, during which father allegedly was verbally abusive to mother and
the children, and threw mother to the ground.
Mother was pregnant
at the time, left the house, and lost the pregnancy. On December 5, without notice to mother,
father obtained a domestic violence TRO and temporary custody order. On December 11, father was arrested, leaving
the children with their half brother and a friend of father’s.
In the Detention Report, filed December
19, the child welfare worker (CWW) reported mother said she had not miscarried,
but had had an abortion several days later because she “afraid something was wrongâ€
with the baby. The CWW “questionedâ€
mother’s account of the incident, given his investigation. Mother also reported father selling marijuana
from the residence.
R.S., who was 12 years old at the
time, did not observe the alleged incident, but heard about it, and said he had
seen father hit mother the preceding week.
R.S. did not want to remain with his father. L.S., who was then 11 years old, said he saw
the incident, but mother fell when father pushed her. L.S. claimed his half brother said if they
saw mother she would go to jail and threatened to kick the children out of
father’s residence. L.S. reportedly had
been crying and was distraught, and said he would not return to father’s house
because of “safety†concerns. The CWW
felt L.S. had been “coached†to say he feared for his safety so he would be
sent to live with his mother and paternal grandmother. M.S., who was six years old, said her parents
yell and swear, they had had a fight, and mother had moved out. She did not seem concerned about being at
home with her older half brother, but said R.S. often cried for their mother.
The grandmother reported she had
been custodian of the children between 2003–2007, while both parents were in
and out of jail. Although accusations
that she abused the children were determined to be unfounded, she relinquished
the guardianship. In 2009, mother
obtained custody of the children.
Between October 2011 and July 2012, mother and the children lived with
her. Mother then left with the children
and resumed living with father. She
described mother as having a chronic and revolving history of drug use, losing
housing, going to jail and leaving the children displaced. She stated father has been diagnosed with
Bi-Polar disorder, but refused to take medication. In her opinion neither parent is an
appropriate care giver, and the children should not reside with them.
The older half brother and the friend
of father’s with whom the children had initially been left believed the two
boys, R.S. and L.S., were rebellious and manipulative, and were trying to insure
they would be sent to their grandmother’s house.
The CWW recommended the court assume
jurisdiction over the children, find the initial removal was necessary, and order
reunification services.
On January 4, 2013,
the County filed an amended petition, additionally alleging lack of support in
that father was incarcerated and unable to care for the children. The County also filed a jurisdiction/disposition
report. By this time, the children had
been moved out of the foster home and placed with the grandmother. The CWW spoke with father, who acknowledged a
domestic violence history and having mental health issues. He had, however, been working as a counselor at
a community outreach program before his arrest. He claimed mother had a continuing drug
problem, which was facilitated at the grandmother’s home, and claimed mother’s two
older sons were “trouble makers†and drug dealers.
The CWW concluded the children were
not safe at father’s because of the history of domestic violence and because he
was then incarcerated. Nor were they
safe with mother because of her unstable housing situation, including the fact she
has continually “run back to the father†despite the domestic abuse. The CWW believed the children had been in a
stable environment with the grandmother, but father “attempted to sabotage the
guardianship by forcing the minors to state that they were being mistreated by
their grandmother.†The children stated
their grandmother never abused them, they want to live with her, and they would
eventually like to live with their mother, once she is stable.
On January 4, 2013,
the court continued the hearing to allow father and his counsel time to review
the County reports. On January 14, 2013, father contested jurisdiction, and the court set the matter for
hearing on February 22.
The day before the contested
hearing, the County filed an Addendum Report reporting that law enforcement had
executed a search warrant at the grandmother’s residence on February 7. The warrant was focused on mother’s two adult
sons, and the search yielded eleven items related to the use and sale of
marijuana. The grandmother and mother,
and the minors, were present during the search.
The CWW also reported R.S. and L.S. were having significant problems at
school, including refusing to attend class.
The grandmother reported the children were “angry†about the situation
with their parents and “scared to death†of father in light of the domestic
violence history. The grandmother felt
“caught in the middle†of the parents’ problems.
Mother claimed she was in therapy,
attending school, and not using drugs, and the CWW referred her to testing. Father stated he could provide the children a
more stable home, and believed the children were being “coached†to say they
are afraid of him. He also stated the alleged
parole violation for which he had been arrested (mother’s claim of restraining
order violation) had been dismissed, mother having been found “not
credible.†The CWW continued to
recommend out-of-home placement given the children’s exposure to “significant
amounts of domestic violence,†the parents’ history of drug abuse, father’s
history of mental illness, and the fact there was some stability in the
placement with the grandmother.
On February 22, 2013, the court held a lengthy hearing at which father and the
grandmother testified. At the close of
the hearing, counsel for the County acknowledged that its burden with respect
to out-of-home placement was clear and convincing evidence. Counsel also acknowledged this was not an
easy case—“[t]here is a lot of back and forth of one person saying one thing
and another person saying another thing.â€
And while there was some testimony supporting father, counsel asserted
the “number one†priority was the safety and well being of the children and
urged the court to assume jurisdiction and make the requested disposition
findings. Counsel for the children
concurred. She agreed the case was “very
complicated†and emphasized the children needed “to stabilize†and that need
was being met by the grandmother.
Counsel for father argued there was
no evidence of a history of domestic violence impacting the children and asserted
the alleged December 1 incident had not been substantiated since the CWW doubted
mother’s version of events and thought L.S. had been “coached†to say he feared
for his safety. Counsel also argued there
was no information as to father’s mental health, other than his generic
statement to the CWW that he has suffered from such issues. What the evidence did show, according to
counsel, was that father has done time in the past, is now out of prison,
actively involved with his children, and participating in community activities. And while the children may want to live with
their grandmother, counsel described her home as a “cesspool†because of the presence
of mother’s two adult sons who are involved in drug dealing and gangs.
While the court agreed there were
some serious concerns about the situation at the grandmother’s that needed to be
immediately addressed, it disagreed there had been no substantiation of
domestic violence impacting the children.
The court believed there was “much more domestic violence†than father
had testified to and was “disturb[ed]†father had skirted the issue of whether
mother was pregnant at the time of the December 1 incident. The court pointed out each child reported
some domestic strife. While R.S. did not
see the December 1 incident, he reported father had hit mother the week
before. While the CWW might feel L.S.
had been “coached†to say he felt unsafe, the CWW did not dismiss L.S.’s
statement that he had seen the December 1 incident and father had pushed
mother. It was also unclear what their
younger sister, M.S., had seen. (Although
not specifically mentioned by the court, M.S. had told the CWW mother and father
“yell†and swear, and mother moved out because of conflict with father.) Thus, not only did the court conclude
domestic violence had occurred, it concluded the violence “was much more severe
than the father has claimed and has testified to.†That father had not been forthright, was
additional reason for concern and made the matter “very problematic.†Given the serious concerns about continued
placement with grandmother, the court stated it was continuing the issue of disposition
for two weeks.
The County filed a Second Addendum
report the day before the continued hearing.
The CWW spoke with grandmother about steps taken after the search to
insure mother’s son who was the target of the warrant was no longer there,
there were no unlawful substances in the home, and the home was safe for the
children. Grandmother had been very
upset by the search and stated she was attempting to find new housing so she
and the children could have a “fresh start.â€
She was also trying to get the two boys, who were failing all classes,
to focus on the need to change their behavior and attitude towards school. The principal reported that when the problems
had started in December, the boys had gone “downhill,†but in the preceding
week, things had turned around. The change,
according to the principal, was “night and day.†The youngest child had been doing well in
school and continued to do so. Mother,
however, had tested positive for methamphetamine, and was not diligent in
testing.
The CWW also spoke with the coordinator
of a program which father occasionally attended to help with his frustrations
in “dealing with his family†and how not to “lash out†when he becomes
overwhelmed. The coordinator stated
father seeks help “basically when he is in crisis.†The coordinator stated father was not doing
drugs, and described him as a good person, who is “really concerned†about his
children. The coordinator, however, strongly
felt father’s residence was not a place for children because of the proximity
of drug activity. The CWW noted that the
interior of father’s residence was appropriate for the children.
Father stated he very much wanted
his children returned, became emotional talking about the fact he had not seen
them, and believed they were saying they are afraid of him because “they will
not be able to get away with bad behavior and will have to perform at school.†He continued to actively monitor their
progress at school.
The CWW spoke with the children, as
well. The youngest commented she feels
safe with her grandmother. Her father
has never hurt her, but she hurts “inside†because he “does stuff to my mother
and he hurts her.†She does not like
going to her father’s because it is near a “drug place†and all she can do is
stay inside. She enjoys school and said
her brothers are trying hard to do better.
The two boys “were both smiling and happy†about their better school
report. Neither of the boys wanted
visits with father. R.S. feared father
would try to “pressure†him to leave his grandmother’s and return to his
house. The CWW believed the children
have been exposed to “significant amounts of domestic violence,†and
recommended continued placement with grandmother.
At the continued hearing, father
argued there was no evidence in the Second Addendum “that to return [the
children] would do anything to harm them other than force them to be where they
express that they choose not to be.†The
trial court reaffirmed its finding that the children have been exposed to
significant domestic violence, making specific note of the youngest child’s most
recent comments to the CWW. Father,
speaking for himself, responded, “[t]hat was never said nothing like that
before. Now, all of sudden that she’s
coming with something like that.†He
urged that his house was safe for the children, given his vigilance in their
safety. The problem, said father, was
mother’s addiction, and asserted the “whole thing is turning into a lie.â€
The court summarized the situation
as being “difficult.†It maintained
placement with grandmother to insure the children were “away from the recovering
drug addicts,†noting also that the children “say, emphatically, they don’t
want to be there.†The court also
ordered therapeutic visitation between father and the children, directing the
CWW to encourage the children to participate despite their stated desire to
have no contact with father, but also stating the CWW was “not to physically
force them.â€
Discussion
Standing to
Appeal
The County contends father has no
“standing†to appeal the dispositional order because he did not have legal custody
of the children at the time the court issued the order. The County bases its argument on the fact mother
was awarded sole legal and physical custody of the children in June 2008, and
the December 2012 TRO father obtained granting custody to him expired by its
own terms a month later, in January 2013.
Thus, the only custody order in effect at the time of the jurisdictional/dispositional
hearing on March 6, 2013, was the order granting sole custody to mother.
Regardless of which parent had legal
custody, there is no dispute that at the time the dependency petition was
filed, the children were residing with father.
Accordingly, the court did not err in considering and ruling on the
issue of removal under section 361, subdivision (c)(1), and father, likewise,
has “standing†to challenge the court’s ruling on appeal. (§ 361, subd. (c)(1) [no dependent child
shall be taken from physical custody of parent or custodian “with whom the
child resides at the time
certain findings are made] (italics added).)
Scope of Appeal
The County also contends father
appealed only the dispositional order pertaining to the oldest child, R.S., and
did not file notices of appeal as to L.S. and M.S. The County thus asserts we have no
jurisdiction to consider the removal orders pertaining to the two younger
children.
However, the second page of father’s
notice of appeal expressly states the notice of appeal “pertains to the
following child or children specify
number of children included): (3).â€
Each of the three children is then listed by name. While it appears the case number on the first
page refers only to the dependency proceeding for the oldest child, R.S., there
can be no doubt whatsoever that father intended to appeal as to all three
children. Furthermore, the dependency
proceedings of all three were heard at the same time, the record as to all
three is identical, and the County has in no way been prejudiced by the
apparent inadvertent failure to place the additional case number(s) on the
notice of appeal. We therefore, turn to
the merits of father’s appeal.
The Removal
Orders
“ ‘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.’ (In re
N.M. (2011) 197 Cal.App.4th 159, 169 . . . .) ‘A removal order is proper if based on proof
of 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. (2011) 202 Cal.App.4th 237, 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. [Citations.] There must be clear and convincing evidence
that removal is the only way to protect the child.’ (In re
N.M., supra, 197 Cal.App.4th at p. 170.)â€
A.S., supra, 202 Cal.App.4th at p. 247.)
Father emphasizes the mandate on the
dependency court to base findings on “clear and convincing†evidence. “[H]owever, ‘ “ on appeal from a judgment
required to be based upon clear and convincing evidence, ‘the clear and
convincing test disappears . . . [and] the usual rule of conflicting
evidence is applied, giving full effect to the respondent’s evidence, however
slight, and disregarding the appellant’s evidence, however strong.’ [Citation.]†[Citation.] “We have no power to judge the effect or value
of the evidence, to weigh the evidence [or] to consider the credibility of
witnesses . . . .†’ (In
re Mark L. (2001) 94 Cal.App.4th 573, 580–581 . . . , fn. omitted.)†(In re
A.S., supra, 202 Cal.App.4th at p. 247.)
We review a removal order for substantial evidence. (In re
Miguel C. (2011) 198 Cal.App.4th 965, 969.)
On appeal, father contends the only
evidence of harm to the children was witnessing domestic violence between
father and mother. Since mother no
longer resides with father, he maintains there is no risk of substantial danger
to the children to support the removal order.
He also maintains the court could insure their safety by means of a
protective order, rather than a removal order.
While mother no longer resides with
father, there is evidence father’s domestic violence remains of concern. The court expressly found father did not
acknowledge the extent of the domestic violence, and found his dissembling to
be of further concern. There was also
evidence father sought counseling for frustration in “dealing with his familyâ€
and how not to “lash out†when he becomes overwhelmed. Even then, he delays seeking help until “basically
when he is in crisis.†This evidence suggests
a problem deeper than just dealing with mother, that could be provoked by
frustration with the children.
In addition, there was evidence of
other concerns. A principal one was father’s
housing situation. While father’s residence,
inside, was acceptable for the children, its locale, above a drug recovery
center, was not, and the court expressly stated it was determined to keep the
children “away from the recovering drug addicts.†Another concern was father’s mental health
condition. While father asserts there is
no evidence this is a current concern, there was evidence he has, during some
periods of time, not taken his medication.
Thus, contrary to father’s argument,
this is not a case where the court allowed the children to control the outcome
on the basis of claims they wanted nothing to do with father. While the court acknowledged the children wanted
no contact with father, it ordered therapeutic visitation and specifically
directed the CWW to encourage the children to participate.
Rather, this was, as the court
observed, a very difficult situation, where none of the dispositional alternatives
before the court were very good. But the
grandmother’s home, with proper monitoring by the County, was the most stable
for the children. In essence, on appeal,
father has reargued the situation, as he sees it. The dependency judge saw it differently, and
there is substantial evidence in the record to support the court’s disposition order.
Father’s appeal from the
jurisdictional findings is dismissed.
The dispositional order removing R.S., L.S. and M.S. from father’s custody
is affirmed.
_________________________
Banke,
J.
We concur:
_________________________
Margulies,
Acting P. J.
_________________________
Dondero, J.
references are to the Welfare and Institutions Code unless otherwise indicated.
father indicated he was challenging both the court’s jurisdictional and
dispositional findings. Given his
statement in his opening brief, we conclude he has abandoned his appeal from
the court’s finding of jurisdiction and, to that extent, dismiss his
appeal.
