In re Michael M.
Filed 4/26/13
In re Michael M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re MICHAEL M., a Person
Coming Under the Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Plaintiff and Respondent,
v.
MICHAEL M.,
Defendant and Appellant.
F065905
(Super.
Ct. No. 516229)
THE COURT
name="_ftnref1" title="">*
APPEAL from
an order of the Superior Court of
County. Ann Q. Ameral, Judge.
Pamela Rae
Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
John P.
Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
Michael M.
(father) appeals an order continuing juvenile court jurisdiction over his son,
Michael, under Welfare and Institutions Code section 364.
evidence to support the juvenile court’s finding that its continued supervision
was necessary to protect Michael. We
affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The
(the Agency) intervention in this matter began the day Michael was born in
January of 2012. He tested negative for
controlled substances, but his mother, Gabriella G. (mother) had a long and
unsuccessful history with the Agency and the juvenile court. Mother had five other children, none of whom
resided with her. Her two oldest
children were removed in 2005 and, after mother failed reunification services,
placed permanently with their father in 2007.
A daughter was removed in 2009 and mother’s parental rights terminated
after she failed to reunify. Twin sons
born in 2010 were removed from mother’s care and she was denied services.
Upon
Michael’s birth, a preliminary investigation of father determined that he had
no previous child protective service history; he had established a residence
away from mother; and he had all necessary items to care for a baby. It was determined that, while mother posed a
risk to the child, Michael could be safely released to father’s care. A section 300 petition was filed to remove
Michael from mother’s care and custody.
The child
was detained from mother, but allowed to remain with father on the condition
that mother not be allowed contact with Michael unless approved by a social
worker. Visitation with mother was to be
three times a week at the Agency.
The report
prepared in anticipation of jurisdiction/disposition recommended that Michael
be declared a dependent and removed from mother’s custody but remain with
father under family maintenance services.
Because father expressed a desire to continue his relationship with
mother and have her move into his home, reunification services were recommended
for mother.
Further
investigation of father revealed that he had a very lengthy history of criminal
behavior and substance abuse. He had
begun using drugs at age 13, but claimed to have stopped with treatment in
2009. But he had a drug arrest and
conviction in 2010, with a 36-month probation sentence. Father had 12-year-old twin daughters who
lived with their mother.
Father and
mother became a couple in January of 2011.
Father claimed that he did not need or want services, only that mother
should “come home and be a mother.â€
Father believed it would be easier for her to complete her services if
she were home with the baby. Although
father did not want any Agency involvement for himself, he believed that mother
should have some Agency involvement “due to her history.â€
The social
worker made a visit to father’s home 12 days after Michael was born. Although the visit was scheduled, father had
forgotten about the visit and asked that the social worker call right before
coming the next time. Mother was at
father’s home cooking in the kitchen, but Michael was down the street with a
babysitter. The Agency recommended that
father participate in substance abuse testing as his only service plan
element.
At the
March 5, 2012, contested jurisdiction/disposition hearing, father objected to
family maintenance services for himself because he felt like “the governmentâ€
was “kind of stepping in where there’s no need to step in.†Father testified that, if the court allowed
it, he would be “more than willing†to have mother come home immediately and
“be a mom.†He acknowledged that,
although he was a recovering addict and working in a drug treatment program at
the time of mother’s pregnancy with Michael, he did not realize that mother was
using drugs while pregnant until she told him so. They moved in together the following month. Father claimed that he himself last used
drugs in 2009 and that a 2010 felony drug conviction was not his, but because
of his “history†no one would believe him.
The
juvenile court found Michael a dependent of the court and removed him from
mother’s custody. It approved a service
plan for both mother and father, which left Michael in father’s custody with
family maintenance services. The
juvenile court gave the social worker discretion to allow mother’s visits to
occur in father’s home, when appropriate.
Interim review was set for June 8, 2012; six-month review for August 31,
2012.
Over the
following three months, mother continued to attend her programs, completed
substance abuse services, and was moving into her aftercare program. Father drug tested negative. Michael was healthy and well cared for, and
mother had twice weekly visits in father’s home.
At the June
8, 2012, interim review hearing, father testified that he and mother were
“friends†and, “[a]s of right now,†did not intend to be a couple. But father said that mother could come live
at his home for a trial visit with Michael.
The social worker was hesitant to recommend a trial visit in father’s
home if the goal of father and mother was not to be a couple. Father said that he did want Michael to see
him and mother “interacting†and did not mind mother being in the home. The juvenile court suggested and issued an
order that, at the social worker’s discretion, mother could provide daycare for
Michael while father was at work.
After the
hearing, the social worker informed father that day-long visits would begin in
a week, as soon as she was available to monitor the situation. Father was worried about mother’s reaction to
the delay as she was “fragile†and had a difficult time dealing with things
“that don’t always go her way.†A
transition meeting was scheduled to take place before the first trial
visit.
But 10 days
later, before such a transition meeting could occur, father informed the social
worker that he thought mother was using drugs again and he did not want her to
move in if she was. Father was concerned
that mother would try to flush the drugs from her system to avoid a positive
drug test. A subsequent hair follicle
drug test for mother came back positive for methamphetamine and
propoxyphene. The social worker informed
mother that she could no longer be in father’s home with the baby and needed to
get a new substance abuse assessment.
Mother continued to deny use.
On July 9,
2012, father informed the social worker that he and mother were not in a
relationship and were no longer working toward one at that time. When the social worker contacted mother to
encourage her to do the substance abuse assessment, mother insisted that she
should be allowed in father’s home when the baby was not there. Mother refuted father’s claim that they were
not in a relationship.
Mother
called the social worker to announce that she had her “engagement ring†back
and did not know why she was not allowed into the house. Father explained to the social worker that he
was willing to “stay engaged†to mother if she was working on her drug
treatment and other issues; if not, he did not want a relationship with
her. At a baby visit at the Agency when
father did not come into the visiting room, mother became upset and got into a
loud, verbal altercation with father.
On July 16,
2012, father telephoned the social worker to say that mother was four and a
half months pregnant. Mother said it was
father’s child; he was not “100% positive.â€
According to father, the two were still engaged.
The
following day, mother was admitted to a residential
treatment facility. She tested
positive for cocaine and alcohol. A day
later, when told that visits with Michael would not include father, mother
became very angry and left the treatment facility.
On July
18, 2012, father said that he was going to continue to stay engaged to mother
and support her, but he was not sure how much longer he could do so. By the following day, father was “completely
done†with mother and informed her of his decision.
On July 24,
2012, mother told the social worker that she continued to see father when
Michael was not around. Father refuted
her statement, saying mother was a “walking time bomb†and “using
everyday.†Mother then claimed that they
were in a relationship, but that father had been threatened by the social
worker that his case would not be dismissed at review if he was in the
relationship. Mother continued to deny
drug use and refuted any angry outbursts described by service providers.
The
following day, father told mother in front of the social worker that they were
not a couple and that she needed to work on her recovery and case plan before
they could again discuss their relationship.
Mother insisted that this was a lie as the two of them had been together
the night before. Father denied mother’s
accusation, and showed the social worker his cell phone with around 30 missed
calls from mother the night before.
Father said he had spent the night in a motel to avoid mother, who he
knew would try to come to his house.
Mother was
admitted to another residential treatment program on August 7, 2012. The following day, the facility contacted the
social worker to ask what mother and father’s relationship was, as father had
been there a number of times over the two days.
Father had wanted to take mother to a doctor’s appointment, but the
facility was told she was to be transported only by the Agency.
Father told
the social worker he was afraid that if they did not let mother go to her
appointment, she would leave the program.
He had taken her snacks and personal necessities and rescheduled an
appointment for her.
That same
day, mother came for a visit with Michael.
She was dirty, sick, uncooperative and hostile with staff. Father included himself in the visit and gave
a supervisor a gold necklace to secretly give to mother. A week later, father was seen bringing food
for mother at her doctor’s appointment.
When
informed of the recommendation for continued family maintenance services,
father was unhappy because he claimed he had done everything that was asked of
him. The social worker explained the
concern of father’s inability to be straightforward with mother and to stick to
his decision not to be in a relationship with her, noting the food and jewelry
he bought her. Father said he did that
because he cares and she has no one else to help her. The social worker explained that father’s
vacillation made it difficult to ensure that he would be able to protect
Michael from mother if the Agency were to dismiss the case.
On August
23, 2012, the supervisor from mother’s drug treatment program stated that it
appeared that father and mother were in a relationship. Mother continued to want father to provide
her transportation to appointments, in contravention to the Agency’s
guidelines. The program contemplated
discharging mother because she had gotten more and more restrictive
instructions from her doctor, requiring many hours of rest each day,
effectively preventing her from participating in the program.
Four days
later, on August 27, 2012, mother was discharged. Father had picked up mother from the
emergency room the day before, although he claimed not to know why she was
there. He again stated he was “doneâ€
with mother and was not going to help her anymore.
The report
prepared in anticipation of the six-month review recommended that mother’s
services be terminated and that father receive additional family maintenance
services and be required to participate in co-dependency counseling. A contested review hearing was set for
September 21, 2012.
At the
contested hearing, mother submitted an offer of proof, which was accepted, that
she had entered a residential treatment program for pregnant women three days
earlier. She tested negative at
entry. Father’s counsel argued that
father had kept Michael safe and that he did not need co-dependency
counseling.
After
argument, the juvenile court terminated mother’s services and maintained
jurisdiction with Michael placed with father with an additional six months of
family maintenance services. Father was
to have co-dependency counseling.
Mother’s visits were reduced to one visit per week and she was to
provide her own transportation to the visits.
The
juvenile court specifically stated that father was giving mixed messages about
whether his relationship with mother was really over. It further felt that he was telling the
social worker it was over because he believed that was what he needed to say,
but that it was not truly over. The
juvenile court found that, because of the recent history between father and
mother, if supervision were withdrawn, the circumstances that initially led to
jurisdiction would again exist. !(RT
69)!
DISCUSSION
Father
contends that the juvenile court erred when it found that it was necessary to
maintain jurisdiction in this case. We
disagree.
In order to
address father’s claim, we must first determine which statutory scheme
controls. The juvenile court held the
review hearing pursuant to section 364.
Generally,
when a child has been removed from the physical custody of his or her parents,
the statutory scheme governing dependency proceedings obliges the juvenile
court to place the child “in a safe home or setting, free from abuse or
neglect.†(In re Adrianna P. (2008) 166 Cal.App.4th 44, 55.)
“Section
364 applies when a … court determines that jurisdiction under section 300 is
appropriate, but ‘the child is not removed from the physical custody of his or
her parent or guardian .…’†(
1444, 1450-1451; § 364, subd. (a).)
Section 364 has no application where a child is placed in the home of a
parent with whom the child did not previously reside after being removed from
the home of the other parent. (
251, 263-264.) Under section 364, at
six-month intervals following the disposition hearing, the court is obliged to
determine “whether continued supervision is necessary,†and must terminate its
jurisdiction unless the social services agency proves “by a preponderance of
evidence that the conditions still exist which would justify initial assumption
of jurisdiction under [s]ection 300 ….â€
(§ 364, subd. (c).)
In contrast
to section 364, section 361.2, governs placement when the child has been
removed from the home of a “custodial parent†– that is, a parent who had
physical custody of the child – but has a “noncustodial parent,†that is, “a
parent ‘with whom the child was not residing at the time that the events or
conditions arose that brought the child within the provisions of Section
300.’†(In re Adrianna P., supra, 166 Cal.App.4th at p. 55 & fns. 5, 6;
§ 361.2, subd. (a).) In a case
where a child is removed from the custodial parent and placed with a
non-offending custodial parent, the juvenile court may offer services to either
or both parents. (§ 361.2, subd.
(b)(3).) In such a case, review is held
pursuant to section 366, in which the juvenile court must consider “the safety
of the child†and determine “[t]he continuing necessity for and appropriateness
of the placement.†(§§ 361.2, subd.
(b)(3); 366, subd. (a)(1)(A).)
Here, the
juvenile court removed custody from mother, but neither removed, nor granted
custody to father, but instead allowed Michael to remain with father in a
presumption of custody. In this case,
the juvenile court may have more appropriately proceeded under section 361.2
than section 364. In any event, it does
not follow that the juvenile court committed reversible error.
Although
section 361.2 and section 364 address different situations, the
need-for-supervision inquiry described in section 364 is also applicable when a
child has been placed with a noncustodial parent under section 361.2. (In re
Sarah M. (1991) 233 Cal.App.3d 1486, 1496-1497, disapproved on another
ground in In re Chantal S. (1996) 13
Cal.4th 196, 204.) The
need-for-supervision inquiry gives the juvenile court an opportunity to assess
and, if necessary, modify its course of action under subdivision (b) of section
361.2. (In re Sarah M., supra, at pp. 1496-1497.)
In
reviewing the sufficiency of the evidence from a child dependency proceeding on
appeal, this court looks to the entire record for substantial evidence to
support the findings of the juvenile court.
(In re Austin P. (2004) 118
Cal.App.4th 1124, 1134; In re N.S.
(2002) 97 Cal.App.4th 167, 172.) We do
not consider the credibility of witnesses, weigh the evidence or attempt to
resolve conflicts in the evidence.
Rather, we draw all reasonable inferences in support of the findings and
view the record favorably to the juvenile court’s order. (In re
Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Father has the burden of showing there is no evidence of a sufficiently
substantial nature to support the findings.
(In re Geoffrey G. (1979) 98
Cal.App.3d 412, 420.)
Here, the
evidence showed that the court initially assumed jurisdiction under section 300
because mother had a lengthy history with the Agency. While she tested negative for drugs at the
time, she had a long history of drug abuse, mental health issues, domestic
violence and three failed child welfare cases involving five children, posing a
risk to Michael. Her condition at the
review hearing was far worse than when jurisdiction was assumed. By that time, she was emotionally volatile
and had seriously relapsed on drugs, to the point that she was exposing yet
another unborn child to dangerous substances.
She was also obsessed with father and her relationship with him and
relentlessly pursued that relationship.
While
father was drug free and had kept Michael safe, his ongoing and entangled
relationship with mother was a concern to the juvenile court. While father initially stated that the two
were not a couple, the social worker in a home visit shortly after Michael’s
birth, found mother in father’s home while Michael was not there. And, while father insisted they were not a
couple, mother became pregnant around March of 2012, just as the case had gone
to disposition. By June, when mother was
believed to be doing well with her services, father again said the two were not
a couple, but he would allow her to move into the house to show Michael that
they were a family. Days later, father
reported mother’s drug use to the Agency and claimed that he would have nothing
to do with her if it endangered Michael or his custody of him. Even so, father continued his relationship
with mother, bringing her food and gifts, taking her to appointments, etc. Although father claims that he did these
things because mother was pregnant and had no one else, the reality is that, by
the time of the six-month review hearing, father was even more entangled with
mother than he was at the outset of the case and mother was even more certain
that the relationship existed. As stated
by the juvenile court, “[T]here’s just been too much that has been going on and
it’s been too recent for this Court to believe that the circumstances which justified
initial assumption of jurisdiction no longer exist or that such circumstances
are not likely to exist if supervision is withdrawn.â€
Until
mother is either no longer in the picture or has resolved her many issues, or
father has demonstrated for a significant period of time that he can resist
mother’s manipulations, there is a continued threat that Michael would be
exposed to mother without proper supervision.
Michael, at six months, was particularly vulnerable and needed to be
monitored for six more months in order to assess any further risk and allow
continued stabilization of the family.
In this regard, the juvenile court could properly exercise its authority
to make an order that protects the safety and well-being of Michael while he
resided in his father’s home. (See
Cal.App.4th 285, 309.)
We find
that substantial evidence supports the
court’s order continuing its supervision.
DISPOSITION
The order
is affirmed.
name="_ftn1" title="">* Before
Kane, Acting P.J., Franson, J., and Peña, J.
name="_ftn2" title="">[1] Statutory
references are to the Welfare and Institutions Code.
