In re T.J.
Filed 2/25/13 In re T.J. CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
In re T.J., a Person Coming
Under the Juvenile Court Law.
B242293
(Los Angeles
County Super.
Ct.
No. CK88336)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.H.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Margaret Henry, Judge.
Affirmed.
Nicole
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Stephen
D. Watson, Senior Associate County Counsel, for Plaintiff and Respondent.
__________________________________
K.H.
(“motherâ€) appeals from the dependency court’s orders made at a six-month
review hearing under Welfare and Institutions Code section 366.21, subdivision
(e)
denying her request that her son, T.J. (son), a dependent of the court, be
returned to her custody. Mother contends
substantial evidence does not support
the finding that returning son to her custody created a substantial risk of
detriment to the child. We conclude
substantial evidence supports the finding.
Accordingly, we affirm the judgment.
Son was born in September 2009 to mother and T.J., senior
(“fatherâ€),
title="">[2] who lived together in Louisiana. Mother had a long history of
including major depression disorder and homicidal ideation. She displayed anti-social behavior and a
violent temper.
name="_ftnref3" title="">[3] Mother and father engaged in physical
altercations during the pregnancy. On
one occasion, she used a knife and on another, she hit father on the head with
a glass. When son was 13 days old, she
bit father. With a warrant pending for
her arrest for domestic violence,
mother left Louisiana
with son and moved to California.
In California,
she entered into a relationship with a man who beat her while she held
son. Mother “‘smacked’†and “‘pushed’â€
son. Mother had difficulty functioning
due to her ongoing depression. She did
not want to engage with son. From June
2010 to May 2011, the Department of Children and Family Services (Department)
provided the family with family preservation services, including therapy for
mother’s mental health issues, under a voluntary family maintenance case. Mother’s attendance and participation were
poor, and she did not meet the goals of treatment.
On June
12, 2011, mother left son with maternal grandfather
because she was afraid she would hurt son.
She exhibited depressive symptoms of sadness, irritability, and lack of
motivation. The Department detained son
from parental custody and placed him in shelter care. Mother denied she abused son or had mental
health issues.
In July 2011, mother entered a program of anger
management, domestic violence, and parenting counseling. She completed the program on October 5, 2011.
On October 7, 2011, son was declared a dependent of the
court under section 300, subdivision (a), based on a sustained allegation he
suffered or there was a substantial risk he would suffer serious harm inflicted
nonaccidentally by mother, and subdivision (b), based on sustained allegations
he suffered or there was a substantial risk he would suffer serious harm as a
result of mother’s failure to adequately supervise or protect him, mother’s
willful or negligent failure to provide him with the necessities of life, and
mother’s inability to provide regular care due to her mental illness.
For disposition, the dependency court found mother
“didn’t agree with what anybody else was saying, which leads me to believe
there are some current mental health problems.
. . . [The reports] show domestic violence but not the way she was
saying, every month and a broken arm and all these things. It’s not there. So I think there are current mental health
problems, based on observations and listening to her testimony.†Custody was taken from the parents. Reunification services were ordered for
mother. Because he was a noncustodial
parent, enhancement, rather than reunification, services were ordered for
father. Mother was ordered to
participate in individual counseling to address her case issues, including
anger management, and to submit to a psychiatric evaluation. Mother was granted monitored visits. The court advised the parents that “[b]efore
there can be reunification, parents will have to demonstrate the ability to
meet the physical and emotional needs of the child and the ability to provide
stable and appropriate housing. [¶] . . . And you are advised that failure to participate
regularly and make substantive progress in treatment programs may result in the
termination of reunification services on April 6, 2012.â€
In late October 2011, mother committed vandalism (Pen.
Code, § 594, subd. (a)) of maternal step-grandmother’s vehicle.
condition she serve 14 days in county jail, have no contact with the victim,
complete 52 weeks of domestic violence counseling, and pay fines, fees, and
assessments.
Mother re-enrolled in her outpatient program, but her
progress was only “fair,†because she did not attend sessions regularly. On occasions, she violated the rules of her
monitored visitation, and she frequently argued with son’s caretakers about
son. She refused to allow a monitor to monitor her visits and, on two occasions,
took son away without informing the caretakers.
Mother continued to deny she abused son or had mental health issues.
The psychiatrist who evaluated mother for the dependency
court concluded: (1) reunification would be the ultimate goal,
provided mother complied with psychotherapy and all the Department’s
recommendations; (2) her visits could
become unmonitored if mother remained compliant with all services; (3) mother was at increased risk for a recurrence
of Major Depression, although she did not currently meet criteria for any
DSM-IV diagnosis; (4) and mother would
benefit from regular psychotherapy.
A six-month review hearing under section 366.21,
subdivision (e) was held on April
20, 2012. The
Department recommended son be returned to father’s custody in Louisiana,
and mother requested son be returned to her custody. Finding that “[r]eturn of the child to the
father or release of the child to the father would not be detrimental to the
safety, protection, physical or emotional well-being of the child,†the
dependency court released son to father in Louisiana
pursuant to the Interstate Compact on the Placement of Children under a
home-of-parent father order. The
Department was ordered to provide family maintenance services for father and to
continue family reunification services for mother. Mother was awarded visits, with the court
stating, “hopefully, by the end of this case, she’ll be entitled to joint
custody.†The court stated: “The father is equally entitled to custody of
the child. It’s not just a mother who is
entitled to custody. [¶] And [mother], you took off from Louisiana. I understand there were domestic violence
issues. But he was still entitled to
equal custody. There wasn’t any kind of
an order where you can cut the father out of the child’s life. And now we’re at a stage where he’s
definitely safe to be released to the father.
And you still have to . . . overcome some setbacks. It’s mostly that vandalism charge. [¶]
But reading the report of the 730 evaluator[,] . . . it seems to be
pretty thorough. And it was not
recommending release to you at this stage.
I could not release him to you at this stage. I can release him to the father. Under the law, that is what I should
do.†The court stated, “[I] have found
that release to [mother] is not safe because she hasn’t made enough progress
with her mental health and anger issues.â€
DISCUSSION
Mother
contends substantial evidence does not support the finding under
section 366.21, subdivision (e) that returning son to her custody created
a substantial risk of detriment to the child.
We disagree with the contention.
We
review custody determinations for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th
295, 318-319.) Custody rulings are not
disturbed in a dependency proceeding unless they are arbitrary, capricious, or
patently absurd. (Ibid.)
There
is no abuse of discretion where substantial evidence supports the order. (In re Daniel C. H. (1990) 220
Cal.App.3d 814, 839.) In determining
whether an order is supported by substantial evidence, “we look to see if
substantial evidence, contradicted or uncontradicted, supports [it]. [Citation.]
In making this determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court; we review
the record in the light most favorable to the court’s determinations; and
we note that issues of fact and credibility are the province of the trial
court. [Citation.]†(In re Heather A. (1996) 52 Cal.App.4th
183, 193.) “We do not reweigh the
evidence or exercise independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.†(In re Matthew S. (1988) 201
Cal.App.3d 315, 321.) Thus, the
pertinent inquiry is whether substantial evidence supports the finding, not
whether a contrary finding might have been made. (In re Dakota H. (2005) 132
Cal.App.4th 212, 228.)
Section
366.21, subdivision (e) provides: “At
the review hearing held six months after the initial dispositional hearing, but
no later than 12 months after the date the child entered foster care as
determined in Section 361.49, whichever occurs earlier, . . . the court shall
order the return of the child to the physical custody of his or her parent or
legal guardian unless the court finds, by a preponderance of the evidence, that
the return of the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical or
emotional well-being of the child. The
social worker shall have the burden of establishing that detriment. At the hearing, the court shall consider the
criminal history . . . of the parent or legal guardian subsequent to the
child’s removal to the extent that the criminal record is substantially related
to the welfare of the child or the parent’s or guardian’s ability to exercise
custody and control regarding his or her child . . . . The failure of the parent or legal guardian
to participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would be
detrimental.â€
Substantial
evidence supports the finding that the return of custody to mother would create
a substantial risk of detriment. Mother had a history of harming and creating
a risk of harm to son by her inability to manage her anger and by engaging in
violent domestic altercations in the child’s presence. Participation in an anger management and
domestic violence program, which she completed in early October 2011, was not
effective in rehabilitating her. In late
October, she acted out her anger toward maternal step-grandmother, in whose
home son resided, by committing vandalism.
did not attend regularly. Her failure
“to participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would be
detrimental.†(§ 366.21, subd.
(e).) The psychologist who evaluated her
in the month prior to the hearing concluded she was not sufficiently
rehabilitated to be reunified with son.
Mother continued to deny she harmed son or had mental health issues. She had not succeeded in working her way up
to unmonitored visits. This is
sufficient evidence that return of son to mother’s custody would create “a
substantial risk of detriment to the safety, protection, or physical or
emotional well-being of the child[.]â€
(See § 366.21, subd. (e).)
The
custody issue was scheduled to be reviewed again in six months. We conclude the dependency court’s decision
that mother needed to achieve more progress in rehabilitation before son could
safely be in her care was supported by substantial evidence and not an abuse of
discretion.
Mother
reargues the evidence and asks us to reweigh it. This we will not do. Our role is to determine whether substantial
evidence supports the order. In this
case, ample substantial evidence supports the order.
DISPOSITION
The order is affirmed.
KRIEGLER,
J.
We concur:
ARMSTRONG,
Acting P. J.
MOSK,
J.
to the Welfare and Institutions Code, unless otherwise indicated.
was found to be son’s presumed father.
