In re Sebastian M.
Filed 3/5/13 In re Sebastian M. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
In re SEBASTIAN M., a Person
Coming Under the Juvenile Court Law.
B240157
(Los Angeles
County
Super. Ct.
No. CK91302)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTOPHER M.,
Defendant and Appellant.
ORDER MODIFYING OPINION
AND DENYING PETITION FOR
REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion
filed herein on February 20, 2013,
be modified as follows:
On page 17, the first sentence in
the second full paragraph, reads “The juvenile court also did not err in
ordering father into a drug counseling program†is deleted and the following
sentence is inserted in its place:
The juvenile court also did not
err in ordering father to submit to “‘[r]andom or on demand consecutive 8 drug
tests,’ and, ‘if any test is missed or dirty, then full drug rehab program
w/random testing.’â€
There is no change in the judgment.
Appellant’s petition for Rehearing is denied.
>
Filed
2/20/13 In re
Sebastian M. CA2/2 (unmodifed version)
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opinion has not been certified for publication or ordered published for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
TWO
In re SEBASTIAN M., a Person
Coming Under the Juvenile Court Law.
B240157
(Los Angeles
County
Super. Ct.
No. CK91302)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTOPHER M.,
Defendant and Appellant.
APPEAL from an order of the Superior
Court of Los
Angeles County. Rudolph A. Diaz, Judge. Affirmed.
Lisa A. Raneri, under appointment
by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Emery El Habiby, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Christopher M. (father) appeals
from a juvenile court dispositional order (Welf. & Inst. Code, § 395)
(Sebastian, born Dec. 2007). He contends
that the juvenile court abused its discretion when it ordered father to
participate in a 52-week parenting program and eight consecutive, random drug
tests.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition
and Detention
Father and
E. J. (mother) are Sebastian’s parents.
This family came to the attention
of the Department of Children and Family Services (DCFS) on November 25, 2011. DCFS’s detention report indicates that DCFS
received a referral, alleging that mother and her boyfriend, Luis Ruben L.
(Ruben), engaged in domestic violence and that Ruben had slapped Sebastian with
an open hand.
Emergency response worker Raquel
Valenzuela (Valenzuela) interviewed Sebastian, who denied witnessing domestic
violence between mother and Ruben. He
said that he liked Ruben, who only “‘tickle[d]’†him. When Valenzuela explained that tickling was
not hitting, Sebastian responded, “‘well my dad said to say that.’†Sebastian informed the social worker that
Ruben does not hit him, but that two days earlier, father told him to say that
Ruben does hit him. Also, father once
told Sebastian “‘to get a fork and stab Ruben on his chest while he is
sleeping.’†Sebastian clarified that he
would not do that.
Mother denied the allegations,
stating that father had made false reports to DCFS in the past. Mother claimed that in 2008, father had bit
her on the shoulder. She also asserted
that father had been stalking her and insulting her in front of Sebastian since
their relationship ended in 2010. Father
had been arrested on April 23, 2011,
for threatening to kill mother and Ruben and for hitting Ruben with a cane.
Previously custody orders issued in
family court in May 2011. The family
court had denied mother’s request for a restraining order against father, but
ordered the parents to exchange custody of Sebastian in the lobby of a police
station and to conduct all nonemergency communication through the “Our Family
Wizard†Web site. Subsequently, a
criminal protective order issued under Penal Code section 136.2.
Mother claimed that during the
custody exchanges, police officers observed father insulting her in front of
Sebastian. The officers warned and
counseled father and, on one occasion, asked him to leave first. Mother also claimed that father followed a
social worker home and insulted her.
Father stated that DCFS was not
protecting his child, who was being exposed to domestic violence and being hit
by Ruben. Reportedly, when the social
worker explained that there was no evidence of physical or emotional abuse to
the child, father insulted the social worker, stating that she was biased in
favor of mother because they are both Hispanic.
Valenzuela interviewed Sebastian in
his room with father’s permission. When
asked about Ruben, Sebastian became very quiet and checked the door to make
sure that it was locked. He also put his
head in a pillow and did not want to talk.
Sebastian denied being hit by father or Ruben. He told father that Ruben tickles him, but
father told him to say that Ruben hits him.
Sebastian stated that father asks him a lot of questions about mother
and Ruben, and “‘he says that I have to tell him everything or else he will get
mad at me.’†When asked what happens if
he does not tell his father, Sebastian responded, “‘but I do and then he is
happy.’†Later, Sebastian became quiet
and sad and began to cry, saying “’I’m not going to see my puppy, I want to go
to my mom’s house to see my puppy.’â€
Ruben denied engaging in domestic
violence with mother or hitting Sebastian.
He explained that a judge had denied mother’s request for a restraining
order due to lack of evidence that father was stalking, harassing, and
insulting her.
Sebastian’s family law attorney
opined that father was using the family law court and Sebastian to “‘get to
mother’†and suspected that father was probably coaching Sebastian.
On December 13, 2011, father tested
positive for hydrocodone, which he explained he was taking for a spinal
injury. He did not provide proof that he
had a prescription, and the social worker became concerned that father may have
unresolved mental health or substance abuse issues.
That same day, Sebastian told the
social worker that he and father passed by mother’s address and began to follow
Ruben by car. According to Sebastian,
father also looks at mother’s Facebook page, and points to her and calls her a
bitch. Sebastian indicated that he was
not afraid of father.
Officer Martinez said that father
had behavioral issues during custody exchanges at the Sheriff’s station,
including continuing to try to speak to mother after she refused to speak to
him. On one occasion, mother was advised
to leave the station first and father was counseled to speak to mother through
the “Family Wizard.†On another
occasion, father was physically removed from the police station.
Mother reported that during a
recent custody exchange, father insulted her outside of the police station,
stated that he knew her address, and yelled the address to her in front of
Sebastian. Sebastian said that father
went to mother’s address and told him to point out mother’s apartment.
Mother also claimed that father
recently waited for her outside the police station in his car after they completed
a custody exchange. Officers also
witnessed father at the police station waiting for mother to leave. Detective White stated that father seemed
agitated and demanding, and stated that mother needed to speak to him in
person. Detective White advised him to
communicate with her through the “Family Wizard.â€
Detective
White also informed the social worker that a criminal hearing was set for
January 23, 2012, regarding the April 23, 2011, charges against father for
assault with a deadly weapon and criminal threats to mother and Ruben. The police also had been called to mother’s
old address several times because father allegedly violated orders, wrote lewd
letters to mother, and threatened Ruben.
The police counseled father and released him.
On January 4, 2012, DCFS filed a
section 300 petition on behalf of Sebastian.
Counts a-1 and b-1 alleged that father bit mother’s shoulder, threatened
to kill mother, stalked mother with Sebastian in the car, and called mother
derogatory names in Sebastian’s presence.
Counts a-2 and b-2 alleged, in part, that father struck mother’s male
companion with a wooden cane and his fists and threatened to kill him. At the detention hearing, the juvenile court
detained Sebastian from father and released him to mother. Father was allowed monitored visits three
times a week, two hours per visit.
Restraining Orders
Valenzuela
and supervising social worker Raquel Rivas (Rivas) filed applications for
restraining orders protecting them from father.
They claimed that father had followed them out of the building after
hours. Valenzuela had received several
consecutive “missed†telephone calls from an unknown number, and, during one
call, heard someone breathing into the phone.
Reportedly, father disclosed that he had taped Valenzuela and Rivas
leaving the building. One day later,
father called Valenzuela requesting a visit with Sebastian, and became loud and
upset that he could not visit that day.
He told Valenzuela that he could “’Google’†her name just like he
“‘go[o]gled’†mother and found her. On
January 24, 2012, the juvenile court issued mutual stay away orders for father
and the social workers.
Jurisdiction/Disposition
Report
DCFS
advised that Sebastian had told Dependency Investigator Luis Cardenas
(Cardenas) that father only called mother a bitch once or twice. When asked if he saw his parents fighting,
Sebastian replied: “‘My mommy and dad
don’t fight.’†He also denied that
father told him to hurt Ruben. Cardenas
could not verify Sebastian’s statements from prior interviews, given his
refusal to answer Cardenas’s questions.
Father
claimed that Valenzuela’s statements in the detention report were false, and
she could not have interviewed Sebastian on the date stated because Sebastian
was in father’s custody that weekend.
Father also said that the allegations against him were false. He bit mother in a sexual context during
their relationship. He denied all of the
other assault allegations and denied ever threatening mother. He also denied calling mother derogatory
names, arguing with her in front of Sebastian, stalking mother, following
mother, or questioning Sebastian about her.
Father prepared a list of his issues and concerns regarding mother for
the social worker, including that mother exposed Sebastian to domestic violence
and verbal abuse between herself and Ruben and allowed Sebastian to interact
with a sex offender who lived next door.
Father
explained that on April 23, 2011, he informed mother that he would be coming by
to pick up Sebastian’s bicycle. He left
Sebastian in the paternal grandmother’s care while he went to collect the
bicycle. When father arrived at mother’s
home, Ruben and his friends attacked him.
Father defended himself, but was arrested. The charges against him were being dropped
because father asserted that he acted in self-defense.
Mother
claimed that father arrived at her birthday party that day, uninvited and
unannounced. Ruben claimed that father
had threatened to kill him. Father also
insulted mother’s aunt and the aunt’s husband.
Ruben and his friend intervened when it appeared that father was going
to hit the aunt with a cane. Father then
hit Ruben in the face with the cane, and the two men began fighting. Several guests restrained father until the
police arrived and arrested him.
Both Ruben
and mother claimed that on March 1, 2011, father went to mother’s home as she
opened the door for Ruben and grabbed mother’s neck. When mother and Ruben stated that they were
calling the police, father took mother’s cell phone and left. Subsequently, father allegedly called Ruben
on a daily basis, threatening to kill him.
Detective
White stated that a criminal case has been filed by the city attorney against
father and remained ongoing. It was very
likely that the case regarding the March 1, 2011, incident would be heard
with the case regarding the April 23, 2011, incident. However, during the custody exchanges, father
listened when Detective White counseled him not to speak to mother.
DCFS
recommended that the juvenile court dismiss the section 300 petition without
prejudice, concluding that, while father appeared to be harassing mother, there
was no clear indication that he purposefully intended to cause Sebastian any
detriment. There was no sufficient
evidence indicating that father had neglected or abused Sebastian. No concerns were noted regarding father’s
monitored visits with Sebastian, who interacted well with father. Sebastian never witnessed father physically
assaulting mother or Ruben, and Sebastian showed no signs of emotional
abuse. Mother appropriately reported
father to law enforcement when she believed that he had committed a crime
against her. DCFS recommended that the
juvenile court terminate dependency jurisdiction with a new family law order
awarding the parents joint legal and physical custody of Sebastian and ordering
Sebastian to attend counseling.
Last Minute
Information and Hearing (Feb. 1, 2012)
On February 1, 2012, while waiting
in the courthouse lobby for the case to be called, mother told social worker
Jose Sartorio (Sartorio) that father had threatened her. Father denied threatening mother and
complained that DCFS was permitting his child to live with a woman with a sixth
grade education. He requested that the
social worker tell mother to meet him in the cafeteria.
Cardenas reported that DCFS
recommended that the section 300 petition not be dismissed, opining that father
had “an anger management issue and a clear lack of control†that seemed likely
to expose the child “to emotionally harmful confrontations between his parents
instigated by the father.†Although
Sebastian did not disclose to Cardenas that his father instructed him to stab
Ruben in the chest, Valenzuela reported that the child was very serious and
credible when he made these statements in the detention report.
At the February 1, 2012, hearing,
father denied behaving aggressively as reported and objected to DCFS’s request
for a continuance to consider filing a first amended petition. The juvenile court continued the matter to
February 16, 2012, and ordered DCFS to file a first amended petition by
February 9, 2012.
First Amended Petition
On February
9, 2012, DCFS filed a first amended petition on behalf of Sebastian pursuant to
section 300, subdivisions (a) and (b).
The amended petition contained the same allegations as those in the
original petition and added count b-3, alleging that father “demonstrated
behavior consistent with emotional problems,†by “engaging in uncontrollable,
extremely aggressive and volatile behaviors towards others.†Specifically, on March 1, 2011, the petition
alleged that he “physically assaulted the mother and her boyfriend.†And, on April 23, 2011, he allegedly
“assaulted the mother’s boyfriend and threatened to harm the mother, the
mother’s boyfriend and the mother’s guests.â€
Again on February 1, 2012, he called mother a “bitch†in the lobby of
the Children’s Court. The petition
further alleged that father had not been able to control his behavior at the
police station during custody exchanges; he pointed out mother to Sebastian and
identified her as a “bitchâ€; he instructed Sebastian to point out mother’s
apartment; he directed Sebastian to stab Ruben with a fork while Ruben was
asleep; and he directed Sebastian to falsely accuse Ruben of hitting the child.
Interim Review Report
On February 16, 2012, DCFS reported that, during a new
interview, Sebastian indicated that father calls mother a bitch all the
time. During the previous interview,
Sebastian stated that father only called mother a bitch once or twice. Sebastian also disclosed that Ruben had
punched him in the chest while they were doing a somersault and playing. When asked who told him to say that,
Sebastian appeared puzzled. No bruises
were observed on Sebastian’s chest.
Sebastian responded affirmatively when asked if someone told him to stab
Ruben with a fork, but he did not identify the individual.
Father
denied mother’s allegations that he called her derogatory names and threatened
her in the courthouse on February 1, 2012.
He also denied instructing Sebastian to point out mother’s apartment,
telling Sebastian to stab Ruben with a fork, telling Sebastian to say that
Ruben had hit him, and insulting mother at the police station. He believed that mother was coaching
Sebastian because he heard his son say that someone told him to say that father
touches him all over his body. Mother
claimed that father had recently called her, but father explained that he
accidentally dialed mother’s telephone number.
Father
presented Cardenas with the family court docket, which indicated that the
family court had denied mother a restraining order because she failed to prove
her allegations against him. That said,
father had not obeyed the family court order that he not go to mother’s
residence when he went to her home on April 23, 2011. Mother presented Cardenas with the criminal
protective order filed on June 21, 2011.
Valenzuela
stated that she felt threatened and scared of father because he “would
constantly call her pressuring her and on several occasions called her ignorant
and accused her of not doing her job.â€
When “she would try to deescalate him . . . he would
laugh at her.†He waited for her and her
supervisor in the lobby for six hours and videotaped them leaving the
building. He also told her that he could
“[G]oogle†her and find her. Valenzuela
also claimed that when she interviewed Sebastian at father’s home, Sebastian
appeared “very aware that his father may be listening†and “appeared nervous and
got up to check if the door was closed.â€
Mother’s
acquaintance, Lidia C. (Lidia), who is a social worker, helped mother prepare
paperwork for her family law case and served father a notice of hearing, which
contained Lidia’s contact information.
Lidia claimed that father had called her and insulted her, and also went
to her home and told her husband that he wanted Lidia to stay out of his
family’s problems.
A deputy
city attorney stated that his office was not dismissing the criminal case
(charging criminal threats, spousal battery, petty theft, simple battery, and
trespassing) against father.
DCFS
recommended that the juvenile court sustain the first amended petition, offer
mother family maintenance services, and offer father reunification
services. No written case plan was
attached to the report.
Last Minute Information
In a subsequent report, father reportedly asked Sebastian
questions about mother and Ruben during a recent monitored visit. Sebastian appeared anxious and stated several
times that he wanted to go with mother.
Sebastian also indicated that he wanted his father to come to the visits
after being asked several times. Father
expressed dissatisfaction with having to go to DCFS to visit his child. He also expressed that Ruben continued
hitting Sebastian, but DCFS failed to do anything about it. At the end of the visit, when Sebastian said
that he was thirsty, father reportedly told Sebastian that his mother would
give him something to drink because she had money and was “‘a better parent.’â€
After the
visit, social worker Sartorio received an e-mail from the Child Protection
Hotline, stating that father reported that the social worker had told him to
contact the hotline to report his concerns.
The social worker claimed that he did not tell father to call the Child
Protection Hotline.
Combined
Jurisdiction/Disposition Hearing
Father’s
Testimony
At the
March 12, 2012, combined jurisdiction/disposition hearing, father testified
first. He stated that he believed he was
in dependency court because mother was unhappy with the visitation orders she
had obtained in family court. He denied
acting inappropriately at custody exchanges at the police station, noting that
no reports existed establishing that he had done so. He believed that mother and Lidia coached
Sebastian to say that father says bad words to mother.
During
visits, father reads and writes with Sebastian.
He denied talking about mother during his last visit with Sebastian,
explaining that if he had done so, the visit would have been terminated.
Father
further denied all of the allegations and damaging statements made against him,
although he indicated that he may have struck Ruben in the face with his
fists. He also questioned the reason
Hispanic social workers were assigned to the case, given mother speaks fluent
English and he does not speak Spanish.
He denied stating that Hispanic people were ignorant.
Father
remained unemployed since about 2007. He
had two spine-related surgeries within the last six months and had to take pain
relievers and anti-inflammatory medication, which he stopped taking since the
procedures. He took hydrocodone
intermittently for flare ups of the injury at the base of his spine,
explaining: “the CI was crushed in five
different places.†He never noticed any
changes in his behavior associated with taking hydrocodone or the any other
medications prescribed postsurgery. He
provided his doctor’s name and contact information.
The parents
began making custody arrangements in 2011.
Neither mother nor Ruben ever expressed any concern that father hit
Sebastian. Sebastian was not present
when father allegedly called mother a bitch outside the courtroom. During the April 23, 2011, incident,
Sebastian was in the paternal grandmother’s care. Father had never seen a psychiatrist and none
of his doctors recommended that he do so.
Father
stated that the district attorney’s office had rejected a criminal case against
him. The city attorney’s office decided
to prosecute the case after mother sought a restraining order against him. All of mother’s requests for restraining
orders against him had been denied. He
and mother had a “keep the peace†order in place, not a criminal restraining
order.
Finally,
father testified regarding a recent incident at an El Pollo Loco. He said that he went to buy lunch for
Sebastian to take to their visit as he always does. He saw Sebastian and mother there. He said “hi†to Sebastian and walked
out. He took a picture of mother to
establish that she had failed to attend therapy as ordered. He did not threaten mother.
Mother’s
Testimony
Mother
testified next. She said that she never
saw father physically abuse Sebastian.
Sebastian had not been diagnosed with anxiety or depression, but
sometimes he had difficulty going to sleep after visiting father.
Mother
asserted that father had called her derogatory names in front of Sebastian,
including at the police station. A week
ago, Sebastian called her a bitch, stating that is what his father calls her. Over father’s objection, mother testified
that Sebastian stated that father told him to stab Ruben with a fork while
Ruben was sleeping. Sebastian also
stated that father told him to say that Ruben hit him, but Ruben never hit
Sebastian.
Mother then testified that she
unsuccessfully attempted to obtain a restraining order in family court;
however, in June 2011, she obtained a criminal restraining order against
father, which expires in three years.
She felt threatened by father because she did not know if he would be
there when she went out or what he is capable of doing. In March 2011, father entered her home when
she opened the door for Ruben, grabbed her neck, and pushed her against Ruben
and took her cell phone. Father had also
followed her while he had Sebastian in the car and called her derogatory names
and made a negative comment. She could
hear Sebastian crying. Father also
called her a week ago and began yelling at her, even though the court had
ordered him not to contact or approach her.
Mother then told the juvenile court
about the recent incident at El Pollo Loco.
Father arrived there while mother and Sebastian were eating lunch. Father did not threaten them, but started
taking pictures of them and was laughing.
Sebastian responded by trying to explain the situation to himself,
stating: “Why is my dad doing this?†and
“Oh, maybe it’s because he loves me.â€
Valenzuela’s
Testimony
Valenzuela
testified that Sebastian cried and was emotional and guarded during her
interview of him. However, she had
interviewed other children who cried and were sad. When she asked Sebastian why he was crying,
he replied: “I’m not going to see my
puppy any more.†Sebastian also checked
the door to make sure it was closed while he was disclosing information about
father. Father told Sebastian that
“tickling is hitting,†but Sebastian denied that Ruben hit him. She believed that Sebastian was at risk of
physical harm because he stated that father told him to stab Ruben with a
plastic fork. But, Sebastian had
indicated that father had not hit him, and he was not afraid that father would
physically harm him.
She further
opined that father was manipulative and demanding, and she was afraid of him
because she felt she “needed to listen to him†when he told her to re-interview
Sebastian. She was offended that he said
that she was biased in mother’s favor based upon her ethnicity. Father admitted that he repeatedly called her
from an unknown number; he also breathed heavy into the phone. One time, he went to the DCFS office at 1:30
p.m. and was there at 5:30 p.m. when she left. The next day, he claimed to have videotaped
her leaving the building. He also made a
statement about finding out where she lived.
Cardenas’s
Testimony
Cardenas
testified that he had worked for DCFS for three years, but only had worked as a
dependency investigator for five months when he was assigned to this case. He made a mistake when he recommended
dismissal of this case because he failed to give enough weight to Sebastian’s
initial statements to the emergency response worker. He reexamined everything when he learned of
the event outside the courtroom.
He stated
that father had behaved aggressively outside the courtroom on February 1,
2012, by calling mother a bitch. He
admitted that he had not witnessed the incident and had never observed the
parents interacting. He also believed
that domestic violence was an issue because father insulted mother as he drove
by with Sebastian in the car crying, and because he threatened mother at a
party in Sebastian’s absence.
When asked
what made him think father would hit Sebastian, Cardenas replied: “I don’t believe that the actual
investigation involves . . . father physically abusing the
child.†At that point, the juvenile
court dismissed the counts alleged under subdivision (a) of section 300.
Cardenas
believed that father may begin hitting Sebastian because he “has a tendency to
become enraged when people [do not] meet his expectations.†While father never acted aggressively towards
Sebastian during visitation, Cardenas believed that based on father’s
interactions with adults, he would direct the same anger towards
Sebastian. His belief was based on
incidents at the police station where father repeatedly behaved aggressively
towards mother, called her a derogatory name, and was escorted out. Also, a couple of weeks earlier, Sebastian
called his mother a bitch.
Cardenas believed that father was
not concerned about Sebastian because father questioned Sebastian about mother
and Ruben during a recent visit.
Cardenas opined that father was
dangerous because he could not control himself in the courtroom, the DCFS
office, or a police station. He had also
acted aggressively toward and insulted and threatened mother and her friends,
including by going to Lidia’s home, approaching her husband, and asking them to
stay out of his business. Cardenas
believed that father posed a threat to anyone trying to help mother. In fact, the first two social workers on the
case were scared of father because he waited at the office for five hours and
videotaped them.
Juvenile Court’s Order
After entertaining oral argument,
the juvenile court sustained counts b-1,
Dispositional Phase
During the dispositional phase of
the proceedings, Cardenas testified regarding the recommended case plan, which
included a 52-week domestic violence program, a 52-week parenting program, drug
testing, individual counseling, and an anger management program. Cardenas also was not opposed to father
undergoing an Evidence Code section 730 evaluation to determine what drives his
behavior.
Father objected to the proposal
that he undergo an Evidence Code section 730 evaluation and that he participate
in a 52-week domestic violence program, a 52-week parenting program, and random
drug testing.
The juvenile court then declared
Sebastian a juvenile court dependent, removed him from father, and placed him
with mother with family maintenance services.
Father was ordered to participate in family reunification services,
including a 52-week domestic violence program, a 52-week, probation-approved
parenting program, anger management counseling, and individual counseling with
a licensed therapist. He was also
required to complete eight consecutive random drug tests and to submit to a
psychiatric evaluation. Finally, father
was granted monitored visitation.
Father requested a bus pass and a
parking pass, explaining that he had to drive 20 miles to visit Sebastian and
it cost him $10 to park every time he visited (for a total of $30 per
week). The juvenile court denied his
requests, stating: “He doesn’t need a
transportation allowance. He’s got his
own car. He’s not taking a bus, so he
can do that.â€
Appeal
Father’s
timely appeal ensued.
DISCUSSION
I. Standard of review
In reviewing a juvenile court’s order
regarding the requirements of a case plan, some appellate courts have applied
the abuse of discretion standard and some have applied the substantial evidence
standard. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474
177, 188.) The practical differences
between these two standards are not significant. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) “‘[E]valuating the factual basis for an
exercise of discretion is similar to analyzing the sufficiency of the evidence
for the ruling . . . . Broad deference must be
shown to the trial judge. The reviewing
court should interfere only “‘if [ it] find[s] that under all the evidence,
viewed most favorably in support of the trial court’s action, no judge could
reasonably have made the order that he did.’
. . .â€â€™â€ (
II. The juvenile court made a proper case plan
Pursuant to section 362,
the juvenile court has the discretion to fashion dispositional orders that are
reasonable “for the care, supervision, custody, conduct, maintenance, and
support of the child.†(§ 362, subd.
(a); see also In re
532.) Section 362, subdivision (d),
provides: “The juvenile court may direct
any reasonable orders to the parents or guardians of the child who is the
subject of any proceedings under this chapter as the court deems necessary and
proper to carry out the provisions of this
section. . . . The program in which a parent or
guardian is required to participate shall be designed to eliminate those
conditions that led to the court’s finding that the child is a person described
by Section 300.†(§ 362, subd. (d); see
also In re Basilio T. (1992) 4
Cal.App.4th 155, 172.) This provision
and others in the Welfare and Institutions Code “have been broadly interpreted
to authorize a wide variety of remedial orders intended to protect the safety
and well-being of dependent children.†(
478, 486.)
Father has a long history of harmful parenting of
Sebastian. Although there is no evidence
that he physically abused his son, ample evidence exists that father’s hostile
behavior towards mother took an emotional and psychological toll on Sebastian. Moreover, father involved Sebastian in his
domestic violence with mother by telling him to stab Ruben while he slept. Father repeatedly disparaged mother in the
child’s presence and used the child to spy on mother. Father was also using information about
Sebastian’s therapy sessions to sabotage Sebastian’s attempt to improve his
mental health. Under these
circumstances, the juvenile court did not err in ordering father to participate
in a 52-week, as opposed to a shorter, parenting class.
The juvenile court also did not err in ordering father
into a drug counseling program. Father
admitting to using hydrocodone, but he never provided a prescription to the
social worker. Based on father’s
erratic, hostile, and belligerent behavior throughout the pendency of this
matter, the juvenile court could reasonably conclude that father may have been
abusing drugs and thus properly ordered him into a drug counseling program.
Father’s reliance upon In re Sergio C. (1999) 70 Cal.App.4th 957 is misplaced. In that case, “the only evidence of [the father’s] alleged drug use [was the mother’s]
unsworn and unconfirmed allegation, which was flatly denied by [the
father].†(Id. at p. 960.) Here,
in contrast, father admitted to using hydrocodone. In re
Basilio T., supra, 4 Cal.App.4th
155 is also distinguishable. In that
case, “[o]ther than the social worker’s observation that [the mother] behaved
somewhat out of the usual and was obsessed with discussing a fortune-making
invention, there was nothing in the record to indicate either [mother] or
[father] had a substance abuse problem.â€
(Id. at p. 172.) Again, here, father admitted to using
hydrocodone. Father’s admission, coupled
with his aggressive behavior, substantiates the juvenile court’s order.
In urging us to reverse, father points out that DCFS
failed to prepare a written case plan prior to the dispositional hearing as
required by section 16501.1, subdivision (d).
While that may be true, father has not shown how DCFS’s failure amounts
to reversible error by the juvenile court.
As set forth above, ample evidence supports the juvenile court’s
order. Father has not demonstrated or
explained how a written case plan would have yielded a different, more
favorable case plan.
Finally, and almost in passing, father objects to the
juvenile court’s order denying him a transportation allowance and a parking
pass for visitation at DCFS’s office.
Father did not, however, adequately brief this issue. (Benach
v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) As such, we treat it as waived.
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
b-1 alleges that mother and father “have a history of engaging in violent
altercations. On a prior occasion,
. . . father bit . . . mother’s shoulder. On 4/23/2011, . . . father
threatened to kill . . . mother.
On a prior occasion in 2011, . . . father stalked
. . . mother while the child was a passenger in the car and
called . . . mother derogatory names in the presence of the
child. On numerous prior occasions,
. . . father stalked . . . mother. Such violent conduct on the part of
. . . father against . . . mother[] endangers the
child’s physical health and safety, creates a detrimental home environment and
places the child at risk of physical harm, damage and danger.â€
