In re Christine M.
Filed 8/14/09 In re Christine M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re CHRISTINE M., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DAVID M., Defendant and Appellant. | D054445 (Super. Ct. No. NJ13662) |
APPEAL from an order of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.
David M. appeals an order of the juvenile court denying his request to have his minor daughter, Christine M., placed with him under Welfare and Institutions Code[1] section 361.2, subdivision (a). David challenges the sufficiency of the evidence to support the court's findings that placing Christine with him would be detrimental to her. We affirm the order.[2]
FACTUAL AND PROCEDURAL BACKGROUND
In April 2007 The San Diego County Health and Human Services Agency (the Agency) filed a petition on behalf of then 11-year-old Christine under section 300, subdivision (a). The petition alleged Christine's mother, Shannon M., subjected Christine to serious physical abuse that resulted in bruises on Christine's body. Christine also informed the Agency social workers that Shannon drank excessively and would drive under the influence. Christine told social workers that she did not want to live with Shannon but instead wanted to live with her father, David. About one month before the Agency filed the petition, the Agency social workers arranged for David to take care of Christine until Shannon participated in services and regained custody of Christine. However, David returned Christine to Shannon's care after one day even though he knew Shannon had a drinking problem and had abused Christine. After Christine returned to protective custody, David told social workers he wanted another opportunity to take care of Christine. The social worker informed David that he would need to participate in parenting classes and therapy while Christine was in his care.
The social worker submitted a jurisdiction and disposition report in advance of the hearing. Christine had been diagnosed with Tourette's syndrome and required medication for her condition. David had received referrals for services and was in the process of enrolling in parenting classes in addition to therapy for himself and for Christine. Christine did not want to live with Shannon because of the abuse Shannon inflicted upon her. David represented he would do anything to get Christine placed with him again. In May 2007 the court removed Christine from Shannon's care and placed her with David.
In September 2007 minor's counsel filed a section 388 modification petition requesting that Christine be removed from David's care and placed with her maternal grandparents. The petition alleged David did not meet Christine's medical needs. David did not secure a psychological evaluation for Christine. He also did not provide her with therapy. David testified he had taken Christine off of her medication because he and Christine agreed she was not going to take it. The court removed Christine from David's care, finding David did not meet Christine's medical needs and that it would be detrimental for Christine to remain in David's care. The court placed Christine with her maternal grandparents.
At the six-month review hearing, the court placed Christine with Shannon and scheduled a family maintenance review hearing for August 2008. Christine had submitted to a psychological evaluation and was prescribed medication for depression and anxiety. Her diagnosis of Tourette's syndrome was changed to a chronic motor tic disorder. The Agency represented it had lost contact with David. After initiating a parent search, social workers located David in New Jersey.
On August 19, 2008, the court terminated jurisdiction. Christine remained in Shannon's care and maintained visitation with David.
In November 2008 the Agency filed a petition on behalf of Christine under section 300, subdivision (b). The petition alleged Shannon had resumed abusing alcohol. The court held a detention hearing and detained Christine in licensed foster care. Shannon and David received supervised visits with Christine.
In a jurisdiction and disposition report, social worker Salome Yekta reported that David wanted Christine placed in his care. The Agency requested an Interstate Compact on the Placement of Children (ICPC) home evaluation for David's home in New Jersey. However, Yekta estimated that the evaluation would not be ready until January 2009. Christine remained detained at Casa de Amparo. She told Yekta that she loved living in her current placement and wanted to stay there as long as possible because she was in a great school that helped her, and her peers were nice. However, Christine stated that if she had to leave Casa de Amparo, she would like to live with David in New Jersey. Christine continued to receive medication and see a therapist at Casa de Amparo.
Yekta filed an addendum report stating she had spoken with Christine's therapist. Christine maintained she wanted to live with David until she could reunify with Shannon. The therapist noted Christine's symptoms associated with Tourette's syndrome had increased. The therapist believed stress was worsening Christine's symptoms.
At the contested jurisdiction and disposition hearing, Yekta testified that David was scheduled to move from New Jersey to Connecticut for employment reasons. Yekta hoped to place Christine with David once ICPC approval for his Connecticut home was in place. Yekta believed Christine should continue with individual therapy sessions if placed with David. The therapy would address any fear or anxiety Christine may experience as a result of the move, and it would address her prior diagnosis of Tourette's syndrome and depression. David agreed to administer Christine's medication as recommended by her doctors.
The court found that while an ICPC is not required in order to place Christine with a noncustodial out-of-state parent, it would be detrimental to place Christine with David. The court expressed its concern that services for Christine had not been set up out of state. The court noted that Christine was doing well in her current placement. She participated in therapy sessions and received the medication she needed. In addition, the court found it would be detrimental to require Christine to move to New Jersey and then a few weeks later, move to Connecticut. David timely filed a notice of appeal.
DISCUSSION
Substantial Evidence Supports the Court's Order Denying Placement
of Christine with David
David challenges the sufficiency of the evidence to support the court's findings under section 361.2, subdivision (a) that placing Christine with him would be detrimental to her.[3]
A
Section 361.2 and Standard of Review
Under section 361.2, subdivision (a), the court must place a dependent child with a noncustodial, nonoffending parent who requests custody, unless the placement would be detrimental to the child's safety, protection, or physical or emotional well-being. The juvenile court must make its finding of detriment by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Because "detriment" has no clear-cut meaning, courts making placement decisions must have flexibility based on facts unique to each child and parent. (See Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 66.) The overriding consideration for the court is the minor's best interests. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268; In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
When the court's findings as to detriment and the need for continuing supervision are challenged on appeal, we consider the record favorably to the order and determine whether there was substantial evidence from which a reasonable trier of fact could make the findings by clear and convincing evidence. (In re Luke M., supra, 107 Cal.App.4th at p. 1426.) In this regard, we may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone. (In re Nada R., supra, 89 Cal.App.4th at p. 1177.) We must affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Substantial Evidence Supports a Finding of No Detriment
We acknowledge David's wish to have Christine placed in his care and that he stated he would follow the recommendations of doctors relating to Christine's medications. However, the record shows Christine suffered from various mental health conditions that required the administration of medication, the ongoing monitoring of that medication and therapy sessions. When the Agency initially placed Christine with David, he returned her to Shannon after one day even though he had been aware of the abuse Shannon inflicted upon Christine. The Agency placed Christine with David a second time and he lost custody of her after three months. During those three months, David did not provide Christine with the medication or treatment she needed in order to meet her needs. David did not seek out professional assistance when he decided to discontinue her medication. He also did not take Christine to therapy sessions or schedule a psychological evaluation for her.
The record also shows David was in the process of moving from New Jersey to Connecticut. The court reasoned that moving Christine to New Jersey and then to Connecticut would be detrimental to her, particularly in light of the fact that she was doing very well in her current placement, going to therapy, receiving medication and being closely monitored by doctors. In addition, services had not been set up for Christine or David out of state. In evaluating detriment, the court is entitled to consider the emotional impact its placement decision has on the minor. (In re Luke M., supra, 107 Cal.App.4th at pp. 1425-1426.) Further, a finding of detriment for purposes of deciding placement with a nonoffending, noncustodial parent need not be related to parental conduct. (Id. at p. 1425.)[4]
Under these circumstances, it was reasonable for the court to infer that David could not meet Christine's needs without having supervision and services in place, and consequently that it would be detrimental to Christine to place her with David. Given Christine's ongoing medical concerns and David's inability to provide the necessary care for Christine in the past, from this record, substantial evidence supports the court's findings.
DISPOSITION
The order is affirmed.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.
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[1] All statutory references are to the Welfare and Institutions Code.
[2] David's counsel filed a request asking this court to take judicial notice of an April 23, 2009, minute order of the juvenile court showing that Christine had been placed with David. On June 2, 2009, this court ordered that the request be considered concurrently with the appeal. We take judicial notice of the minute order.
[3] In its appellate brief, the Agency contends David's appeal should be dismissed as moot because, subsequent to this appeal, Christine was placed with David. David's counsel responds that the appeal is not moot because the court continues to maintain jurisdiction over Christine. We decline to find David's appeal moot. In the event Christine is removed from David's care in the future, the basis of the court's detriment finding at the disposition hearing could continue to adversely affect David. (See In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1403-1404.) Thus, we exercise our inherent discretion to resolve the issue despite subsequent events. (Ibid.)
[4] Although the court acknowledged an ICPC evaluation was not required before placing a child with a noncustodial parent, the evaluation is a suitable means of gathering information before placing a child with a noncustodial parent. (In re John M. (2006) 141 Cal.App.4th 1564, 1572) The juvenile court is entitled to evaluate all available information before making its placement decision.
