In re Sade A.
Filed 7/20/12
In re Sade A. CA2/4
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re SADE A., a Person Coming
Under the Juvenile Court Law.
B236030
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RICKY A.,
Defendant and Appellant.
(Los Angeles
County
Super. Ct.
No. CK36365)
APPEAL from
orders of the Superior Court
of
County, Marguerite D. Downing, Judge. Affirmed.
Anne E.
Fragasso, under appoint by the Court of Appeal, for Defendant and Appellant.
Andrea
Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and
Kim Nemoy, Principal Deputy County Counsel for Plaintiff and Respondent.
Father Ricky A. challenges the sufficiency of the
evidence to support the juvenile court’s order sustaining a petition declaring
his daughter, Sade A., a dependent under Welfare and Institutions Code section
300, subdivision (b).
name="_ftnref1" title="">[1] He also challenges the
custody and requiring that his visitation be monitored. We find support for each order and
affirm.
FACTUAL AND PROCEDURAL SUMMARY
Sade A. is
father’s first child. The mother, A.A.,
has a long and troubled history with the Department
of Children and Family Services (the Department) which resulted in the
termination of her parental rights as to her six older children. Mother suffered a serious brain injury in a
car accident as a child and, as a result, continues to experience severe
cognitive issues and seizures. She has a
lengthy substance abuse and criminal history, which led to the sustained
dependency petitions regarding her older children. All of the older children were fathered by
men other than Ricky A. Mother does not
appeal the juvenile court’s orders as to Sade.
Sade was
born healthy with negative toxicology tests in May 2011. A
mandated reporter at the hospital contacted the Department
to report that mother was guarded and reluctant to answer questions regarding
her older children. Mother’s hostility
toward hospital staff was causing problems in her reunifying with Sade. Two social workers made an unannounced visit
to mother in the hospital the next day.
Mother allowed them to enter her room, but refused to speak to the
workers until father arrived in response to her telephone call. Mother and father told the workers that they
anticipated their visit, and produced a letter from a Salvation Army
transitional housing program where they were receiving intensive services and
classes.
Mother
described her brain injury
and seizure issues. Father said he had a “life threatening
illness” and felt fortunate that the child does not have the same
condition. Nursing staff reported that
mother had angry outbursts. Both parents
reported a history of substance abuse, mainly cocaine. Mother claimed to have been sober for two years
and father for about one year. Father is
legally blind and told the social worker he was unable to care for Sade by
himself. He told the worker: “‘I can’t see very well so I do have to have
mother do certain things like changing the diaper because I want her to be
clean.’” Mother told the social workers
she was being treated unfairly and that she was now different. She was trying to have her sixth child (J.J.)
returned to her custody. Father said he
also felt mother had been treated unfairly.
He said Sade was “his life.” Both
parents said they were open to receiving services from the Department.
The
Department detained Sade based on the termination of mother’s rights as to her
older children, her unresolved brain damage and seizure disorder, parents’
history of substance abuse, and father’s inability to care for the child by
himself. Sade was placed in a foster
home and parents were to have monitored visits at a minimum of three times a
week. The Department recommended that
mother receive no reunification services pursuant to section 361.5, subdivision
(b) because of her failure to reunify with her older six children.
On June 2, 2011, the Department filed a
petition alleging that Sade was a child within the meaning of section 300,
subdivision (b). The petition was
sustained as amended, alleging mother’s history of substance abuse, cognitive
limitations and seizures render her unable to provide care and supervision for
Sade. The petition also alleged that
five of mother’s other children had received permanent placement services due
to mother’s issues, which endanger the health and safety of Sade. The same count alleged father’s history of
drug abuse, including cocaine, which renders him unable to provide regular care
and supervision of the child.
The
jurisdiction and disposition report by the Department listed father’s extensive
criminal history, including convictions for transporting or selling controlled
substances, possession of controlled substance devices, and being under the
influence of controlled substances.
Mother also had an extensive criminal history. Father had been participating in services
through the Salvation Army and had been attending Narcotics Anonymous
meetings. Father argued that mother was
not treated properly in the prior dependency proceedings involving her older
children. He said that mother was not at
fault because of her brain injury. When
asked by the social worker what mother needed to safely parent, father
responded that she needed assistance, and that he would provide it. Father acknowledged that mother was “‘not
normal’” and “‘can’t think like us.’”
When the social worker discussed several sustained counts from mother’s
previous petitions, father said the allegations were false and accused the
social worker of taking the situation personally.
Father was
voluntarily participating in an outpatient program, parenting classes,
individual counseling and additional bi-weekly therapy through Volunteers of
America. He had a 28-year history of
crack cocaine use, but had been sober for “‘going on a year.’” Father repeatedly refused to be separated
from mother. A room in which the parents
lived at a Salvation Army program was clean, neat, and well-stocked for a
baby. Both parents continued to insist
that mother’s history with the Department was based on hearsay and was
irrelevant to Sade. During a visit with
the child, the parents engaged in an altercation with the foster mother. Father admitted he became upset with the
foster mother, who was no longer willing to facilitate visits.
The
Department’s pre-release investigation report in June 2011 stated that the
parents were continuing to receive housing, meals, and other intensive services
at the Salvation Army Alegria program.
Father continued to state that he was not willing to live separately
from mother, even in order to have Sade returned to his custody. The Department expressed serious concern
about Sade’s safety if she was placed in the home of father. Father expressed little concern about mother’s
ability to parent despite her extensive history with the Department. He continued to maintain that mother was the
victim of the Department and that the events leading to the previous sustained
petitions did not constitute abuse.
Based on the infant child’s need for constant care and father’s legal
blindness, the Department concluded that mother would have significant contact
with the child which would place Sade at risk for abuse and neglect.
A last
minute information for the court included a letter from a psychiatrist who was
treating mother, regarding the dependency case involving Sade’s half-sibling,
J.J. The psychiatrist stated that the
sequelae of mother’s traumatic brain injury could be mistaken for psychiatric
illness or substance abuse. She questioned
whether “sufficient attention has been given to [mother’s] traumatic brain
injury history and her special needs.”
Based on her current evaluation, the therapist did not “see her as a
danger to any of her children in a supervised setting. Alegria could help her build the necessary
skills to care for her children in an ongoing fashion.” A last minute information for August 9, 2011,
informed the court that the parents continued to visit regularly without incident
and that Sade was being transitioned to a new pre-adoptive home closer to
parents to facilitate visitation.
The
jurisdiction and disposition hearing was held on August 31, 2011. The court considered a Multidisciplinary
Assessment Team (MAT) report. The
assessor concluded that the parents were working hard toward the goal of
reunifying with Sade. Father told the
assessor that although he is legally blind, he can see large objects and can
operate with ease in the community. The
assessor observed him moving around the apartment and helping with household
chores. The primary concerns were
identified as the parents’ history of substance abuse, mother’s extensive and
severe history with the Department, and her questionable ability to parent
children due to her cognitive limitations.
The assessor observed: “These are
serious problems and raise very real concerns as to Sade’s safety if she were
to be reunified with her parents.”
The MAT
report lauded the parents’ ongoing efforts to remain sober and participate in
intensive programs. They had remained
sober for “a notable length of time,” although they were still in active
recovery and in need of extensive support.
The assessor characterized their progress as demonstrating “an
impressive commitment to their recovery and to their reunification with Sade”
in addressing substance abuse issues, receiving comprehensive support with
activities of daily living and compliance with services. The assessor found the decision as to whether
to reunify Sade with parents to be “challenging.” He noted mother’s extensive history with the
Department, her sobriety and participation in services, and the support offered
by father. Father claimed he was “more
than able to care for Sade and ensure her safety.” The assessor made recommendations to enhance
Sade’s safety if she was reunified with parents. These included parents’ continuing
participation in Alegria, a home-based parenting program, a care plan for Sade
so she was not left alone with mother, and a plan to reconsider placement in
the event either parent relapsed, engaged in criminal behavior, or left the
Alegria program. The assessor concluded
that “only close monitoring of this case by the courts, DCFS, and other
community agencies can ensure Sade’s safety and healthy development.”
At the jurisdiction
and disposition hearing, both parents argued there was insufficient evidence to
support jurisdiction based on their histories of substance abuse as alleged in
the petition because they were not currently using drugs. Counsel for father also argued that father
had sought intensive services on his own.
The Department acknowledged father’s commitment to addressing his issues
and recommended that he receive reunification services. It recommended that mother not receive
services. The juvenile court sustained
the petition as amended as to mother and as pled as to father. Sade was found to be a person described by
section 300, subdivision (b). Counsel
for father asked the court to place the child in father’s home, or to grant
father unmonitored visitation. Counsel
for mother joined in these requests.
Counsel for the child objected to placing Sade in the parents’ home, as
premature. The juvenile court found by
clear and convincing evidence that there was a substantial risk of danger to
Sade if she were to be returned home to her parents. She was ordered removed and placed in the
Department’s custody. Reunification
services were ordered for the parents, including an unmonitored visit so the
parents could participate in a home-based parenting program with Sade. In addition, the parents were given unlimited
monitored visitation, with a minimum of three times a week. Father filed a timely appeal from these
orders.
DISCUSSION
I
Father
argues the jurisdictional finding under section 300, subdivision (b) must be
reversed because there was no substantial evidence that he posed a substantial
risk of harm to Sade.
“‘On
appeal, the “substantial evidence” test is the appropriate standard of review
for both the jurisdictional and dispositional findings. [Citations.]
The term “substantial evidence” means such relevant evidence as a
reasonable mind would accept as adequate to support a conclusion; it is
evidence which is reasonable in nature, credible, and of solid value. [Citation.]’
(In re J.K. (2009) 174
Cal.App.4th 1426, 1433.) ‘In making this
determination, all conflicts are to be resolved in favor of the prevailing
party, and issues of fact and credibility are questions for the trier of fact. [Citation.]
In dependency proceedings, a trial court’s determination will not be
disturbed unless it exceeds the bounds of reason. [Citation.]’
(In re Ricardo L. (2003) 109
Cal.App.4th 552, 564.)” (
574–575 (E.B.).)
The
sustained petition against father alleged:
“The child, Sade [A.’s] father, Ricky [A.], has a history of illicit
drug abuse, including cocaine, which renders the father unable to provide
regular care and supervision of the child.
Such illicit drug abuse by the father endangers the child’s physical
health and safety and places the child at risk of physical harm, damage and
danger.”
“Section
300, subdivision (b) provides a basis for juvenile court jurisdiction if the
child has suffered, or there is a substantial risk the child will suffer,
serious physical harm or illness caused by the parent’s inability to provide
regular care for the child because of the parent’s mental illness,
developmental disability or substance abuse.
A jurisdictional finding under section 300, subdivision (b)
requires: ‘“(1) neglectful conduct by
the parent in one of the specified forms; (2) causation; and (3) ‘serious
physical harm or illness’ to the child, or a ‘substantial risk’ of such harm or
illness.” (In re Rocco M. [(1991)] 1 Cal.App.4th [814,] 820.)’ [Citations.]
The third element ‘effectively requires a showing that at the time of
the jurisdictional hearing the child is at substantial risk of serious physical
harm in the future (e.g., evidence showing a substantial risk that past
physical harm will reoccur).’ [Citation.]” (In re
James R. (2009) 176 Cal.App.4th 129, 135.)
The focus of this inquiry is whether the circumstances at the time of
the hearing subject the minor to the defined risk of harm. (Id.
at pp. 135–136.) “Evidence of past
conduct, without more, is insufficient to support a jurisdictional finding
under section 300. There must be some
reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]”
(Id. at p. 136.) “A dependency adjudication is a preliminary
step that allows the juvenile court, within specified limits, to assert
supervision over the endangered child’s care.
But it is merely a first step, and the system includes many subsequent
safeguards to ensure that parental rights and authority will be restricted only
to the extent necessary for the child’s safety and welfare.” (In re
Ethan C. (July 5, 2012, S107587) __ Cal.4th __ [2012 WL 2579998].)
The
Department argues that it is unnecessary for us to consider father’s claim that
the evidence was insufficient to support jurisdiction based on his conduct
because mother did not appeal the sustained finding that she posed a risk to
Sade. “‘[A] jurisdictional finding good
against one parent is good against both.
More accurately, the minor is a dependent if the actions of either
parent bring [her] within one of the statutory definitions of a dependent. [Citations.]
This accords with the purpose of a dependency proceeding, which is to
protect the child, rather than prosecute the parent.’ [Citations.]”
(In re X.S. (2010) 190
Cal.App.4th 1154, 1161 [affirming dependency jurisdiction despite reversal of
findings as to father where mother did not appeal findings based on her
actions].) We agree that the finding as
to mother’s conduct is a sufficient basis to affirm jurisdiction over
Sade.
II
Father also
challenges the disposition order removing Sade from his custody. The juvenile court “may not remove a
dependent child from the parent’s . . . physical custody unless it finds, by
action is necessary to protect the child from serious harm. (§ 361, subd. (c).)”
Ethan C., supra, ___ Cal.4th
___.) While the juvenile court must find
by clear and convincing evidence that removal is appropriate, we do not use
that standard on appeal. “The clear and
convincing standard was adopted to guide the trial court; it is not a standard
for appellate review. [Citation.] The substantial evidence rule applies no
matter what the standard of proof at trial.
‘Thus, 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.]’
(Sheila S. v. Superior Court (2000)
84 Cal.App.4th 872, 881.)” (
dispositional order].)
Father argues
the evidence was overwhelming and uncontradicted that he was able to care for
and protect Sade. Respondent agrees that
the social worker reported that the room parents live in at the Salvation Army
was appropriate for the care of Sade and acknowledges father’s participation in
multiple services and commitment to his sobriety, observing that “[i]ndeed,
reunification seems likely.” But father
told social workers that he was unable to care for Sade without mother’s
assistance because of his legal blindness.
He insisted on remaining with mother rather than moving out, even if
doing so would allow Sade to be returned to his custody. In light of mother’s very serious history of
neglect and abuse of her other children, and father’s inability to parent alone,
the court’s decision that the child should be removed from father’s custody is
supported by substantial evidence. (See
Cal.App.4th 1415, 1424–1425 (Tracy J.)
[upholding removal of child with asthma from custody of parents with
developmental disabilities, including cognitive impairments to father from head
injury as a child].)
III
Father
argues the court erred in denying him unmonitored visitation. He cites section 362.1, subdivision (a),
which provides: “In order to maintain
ties between the parent . . . and the child, and to provide
information relevant to deciding if, and when, to return a child to the custody
of his or her parent . . . any order placing a child in foster care,
and ordering reunification services, shall provide as follows: [¶] (1)(A) Subject to subparagraph (B), for
visitation between the parent . . . and the child. Visitation shall be as frequent as possible,
consistent with the well-being of the child.
[¶] (B) No visitation order shall
jeopardize the safety of the child.”
This
argument also is based on father’s contention that substantial evidence
supported return of Sade to his custody at the disposition hearing. He argues it is unclear why all his visits
should not be unmonitored since there is no allegation he is currently using
drugs, and the focus of the case has been on mother’s history with the
Department and concerns about her ability to parent.
“We review
an order setting visitation terms for abuse of discretion.” (In re
Brittany C. (2011) 191 Cal.App.4th 1343, 1356.) The juvenile court in this case ordered
monitored visits for parents a minimum of three times a week, and said that
more could be provided as long as the visits were monitored. The Department was given discretion to
liberalize visitation. We concur with
the admonition of the Tracy J. court
that family reunification services must be tailored to the particular needs of
the family, including parents with special needs. (Tracy
J., supra, 202 Cal.App.4th at pp.
1425–1426.) The juvenile court here
acknowledged the special needs of parents by ordering a weekly unmonitored
visit with Sade for the purpose of participating in hands-on parenting classes
with the child. We find no abuse of the
juvenile court’s discretion in ordering monitored visits for father in light of
his statements that he was unable to parent Sade without assistance because of
his limited sight.
The jurisdictional, disposition and visitation orders as
to father are affirmed.
EPSTEIN, P. J.
We concur:
MANELLA,
J.
SUZUKAWA,
J.
Institutions Code.
removal based on clear and convincing evidence that “[t]here is or would be a
substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be protected
without removing the minor from the minor’s parent’s
. . . physical custody.”
