In re A.W.

Filed 7/18/07 In re A.W. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Contra Costa County Bureau of Children and Family Services (bureau) filed a petition pursuant to section 300, subdivision (b) of the Welfare and Institutions Code^[1] on behalf of A.W. David W. (father) is the assumed father of A.W. and Billie B. (mother) is A.W.s mother. Mother and father both stipulated to jurisdiction. At the disposition and six-month status review hearing, the juvenile court found that placing A.W. with father would be detrimental to her well-being and father appealed.

Subsequently, the court held a 12-month status reviewing hearing, and it again refused to place A.W. with her father. Father again appealed. We consolidated both of fathers appeals, since his claim in both appeals is that substantial evidence does not support the courts finding that placing A.W. with him would be detrimental to A.W.s well-being. We affirm the lower courts rulings.

BACKGROUND

Detention

A.W., who was born in May 2001, was living primarily with her mother, although mother frequently left her with various relatives. From January 2003 until June 2005, the bureau received six referrals alleging that A.W. was being neglected by mother. Mother was homeless and had substance abuse issues.

Mother and father were not married and father was in and out of custody for assaulting mother on at least three separate occasions. On March 7, 2003, father violated his parole by committing a battery on mother. He was incarcerated for this parole violation for 10 months. In June 2004, he again violated his parole by battering mother. He served 12 months for this offense and was released on June 28, 2005. Father has an extensive criminal history, dating back to 1990; in 1995, he was convicted of 10 felony counts.

In early 2005, A.W. began to live with her maternal uncle, Ray M., and his family. On May 9, 2005, Ray was appointed as A.W.s temporary legal guardian. However, on October 13, 2005, the bureau received a referral alleging that A.W.s cousin was sexually abused by her father, Ray.

Further investigation indicated that A.W. had not been sexually abused by Ray, but her cousin had been sexually abused by him. On October 27, 2005, the bureau filed a dependency petition alleging that, under section 300, subdivision (d), A.W. was at risk of sexual abuse because her temporary guardian, with whom she had been living, had molested her cousin. The petition also alleged that, under section 300, subdivision (g), both of A.W.s parents were unwilling or unable to care for her. The petition identified father as A.W.s alleged father.

The detention hearing was held on October 28, 2005, and A.W. was detained. She was placed with her mothers cousin, Edna C., who had been involved with A.W. most of her life. Edna lived with her husband in Hercules; A.W. was the only child living in the home.

Jurisdiction

On December 16, 2005, the bureau filed an amended petition, adding an allegation that A.W. came within the provision of section 300, subdivision (b), because the ongoing history of domestic violence between her parents placed her at risk. On March 27, 2006, father and mother signed a waiver of rights form and pleaded no contest to a section 300, subdivision (b) allegation that their history of domestic violence impaired their ability to care for A.W. All other counts of the petition were dismissed and Ray was removed as a party since his temporary probate guardianship had expired. The court noted there had been a judgment of paternity on file March 4, 2002, which named father the adjudicated father, but did not make him a presumed father. Since he was already the adjudicated father, the court refused to grant fathers request to order a blood test.

Disposition Report

A disposition report was prepared for the hearing set for April 21, 2006. The report stated that mother, who was 38 years old, had one other daughter who lived with her father. Mother did not have a residence of her own. Father was 44 years old. In addition to A.W., father had a son living with fathers grandmother and two daughters living with his stepmother. He also had an adult child attending college. Father disclosed that, prior to A.W.s birth, mother used to help him when he was dealing drugs. He admitted that he went to prison for drug sales. In December 2005, father requested visitation with A.W. Since making his request in December 2005 until the disposition report on April 21, 2006, father had seen A.W. four times; the visits had gone well.

The disposition report stated that father was on felony probation for corporal injury on a spouse and would return to prison immediately if he violated his probation. As a condition of his probation, father was required to complete 40 hours of community service, carry no weapons, have no contact with mother, and complete a 52-week domestic violence counseling program. At the time of the disposition report, father had completed 32 weeks of the required 52-week domestic violence program. Fathers probation officer reported that father was complying with his probation conditions and doing well.

The disposition report also stated that Edna told the social worker that father should not have unsupervised visits with A.W. as mother had alleged in the past that father had molested A.W. and his own older daughter. Mother denied that she ever said anything to Edna about father molesting either A.W. or any of his daughters. Father denied the molestation charges.

Additionally, the disposition report indicated that A.W. was doing well at Ednas home. A.W. informed the bureau that she liked staying at her aunts place and that she wanted to stay there. The bureau recommended family reunification services for both parents. The bureau also recommended that the court find by clear and convincing evidence that placement of A.W. with mother or father would be detrimental to her safety, protection, or physical or emotional well-being.

The disposition hearing was delayed when counsel for father filed a challenge to the assigned judge pursuant to Code of Civil Procedure section 170.1; the court suspended proceedings while the challenge was pending. On July 13, 2006, after the court denied the challenge, the court reinstated the proceedings and set a disposition contest for August 31, 2006. Because so much time had elapsed since A.W.s removal from her temporary guardian, the matter was also set for a six-month contested status review hearing.

Disposition and Six-Month Contested Status Review Hearing

At the time of the hearing on August 31, 2006, A.W. was still living with Edna. After getting off parole on April 21, 2006, father moved into his paternal grandmothers home in Vallejo where his grandmother had been living with fathers 11-year-old son. Father said that his daughters lived with his stepmother. The bureaus status review report stated that father was in partial compliance of his domestic violence counseling. He had seven more sessions to finish his probation requirement of 52 weeks of counseling. Father was also in partial compliance of his parenting classes. Father had completed two or three sessions; he still needed to complete seven more sessions prior to obtaining a certificate of completion. Further, father had made himself very available to the social workers calls and to her requests for home visits.

The bureaus report stated that A.W. had blossomed since she was placed with Edna. A.W. had changed from a shy little girl who hardly spoke to an assertive, spontaneous, happy child. A.W. expressed contentment at Ednas home. She also enjoyed her visits with both her mother and father.

Father had visited A.W. six times since October 2005. Father stated that he would have liked to have visited more but he complained that Edna did not answer his calls or her voice-mail was full when he called. Edna disputed fathers claims and asserted that she was the one who had to call father to see if he would visit A.W. She maintained that she told him that he was welcome to visit as long as he provided her with prior notice.

Father said he would like to start having weekend visits with A.W. to permit her to get to know his side of the family and to provide her with the opportunity to bond with her half-sisters. When the social worker asked A.W. on August 16, 2006, about spending the night at her fathers house, A.W. responded: [N]ot yet, until I say yes. The social worker asked her if she wanted to spend the day with her father, and she said, I want to stay for five seconds and then come back.

The report stated that, although A.W. liked to visit with her father, she indicated that she was not ready to start overnight visits. The report indicated that A.W. felt secure and safe at Ednas home. Prior to coming to Ednas home, A.W.s experience was one of going from relative home to relative home and being pulled from these homes by her mother thereby perpetuating her sense of instability. The bureau therefore recommended that visits with father should start slowly for day visits at first until A.W. felt more comfortable to stay overnight.

At the hearing, father responded, Yes, when asked whether he was asking for A.W. to be returned to his care today. However, he then explained that he wanted to start with weekend visits rather than have A.W. returned to his care right away. He said that he wanted her to be comfortable in her surroundings, but if he could have her, he wanted her. When asked whether he believed it would be better for her to transition into his home rather than just return to him right away, he answered, Yes.

Counsel for A.W. moved to have fathers status elevated from adjudicated father to presumed father. County counsel and counsel for mother did not object. However, counsel for father objected, and the motion to elevate him to presumed father was withdrawn by counsel for the child.

Counsel for A.W. told the court that father had done a great job. He also noted that A.W. had been bounced around a bit, and thats tough. He recommended that A.W. have longer visitation with father and that A.W. be able to interact with the other children at his home.

At the close of the hearing, the court complimented father for his work to get A.W. back and his efforts at maintaining his responsibility with regard to his other children. The court noted, however, that father had not been that protective in making sure hes going to go see A.W. The court observed that even father had admitted that placement with him at this time was not appropriate. The court found that A.W. needed to transition and therefore placement with father was not appropriate at this time. The court therefore adopted the recommendations in the disposition report. However, it ordered that visits with father be unsupervised and that they include overnight visits.

Father filed a notice of appeal from the disposition and six-month contested status review order.

The 12-Month Contested Status Review Hearing

The bureau prepared its report for the 12-month status review hearing. It recommended continuing reunification services to both parents.

The report stated that father continued to reside in the Vallejo home of his paternal grandmother with his son. He also had weekend visits with his daughters who resided during the work week with his stepmother. He also had two unsupervised visits with A.W. during the month of September. These visits were going well and an unsupervised overnight visit was authorized for a weekend at the end of September 2006. After the weekend visit, A.W. returned to Ednas home with a bruise on her neck, which resembled a hickey. The social worker met with A.W. and observed a hickey on A.W.s neck that was approximately the size of a quarter. A.W. reported that her father had caused the bruise on her neck.

The report stated that father admitted he was responsible for the bruise or hickey on A.W.s neck and explained they were playing vampire games and questioned why this was wrong. The report further elaborated that father was admonished for playing games that involve behaviors that could be considered sexualized and/or that leave marks or bruising on his child.

The report affirmed that A.W. was continuing to do well and still appeared to be on target developmentally. The report described A.W. as a very engaging, outgoing girl. She is able to articulate her thoughts fairly clearly. She plays well with her peers and enjoys appropriate friendships for her age. She plays games with her brother, such as pretending she is driving, which demonstrates her ability to utilize her imagination. However, Edna reported that the day care providers told her that A.W. had demonstrated inappropriate play behaviors. Specifically, Edna stated that A.W. was very intimate in her play, wanting to touch people, kiss and hug them in an over friendly way. The day care providers expressed concerns about A.W. being too touchy with other children and Edna was working with A.W. on recognizing appropriate boundaries.

The report concluded that father, at this time, was not in a position to parent A.W. safely. The report declared that father will need to address his parenting style. He needs to learn appropriate boundaries when playing with his children and that it is never acceptable to bruise his child while playing. Additionally, it would be beneficial for [father] to learn effective parenting skills for raising a child that potentially has been exposed to molestation and is displaying sexualized behaviors. The report pointed out that father was able to discuss the incident. Further, it noted that father expressed an interest in pursuing parenting education to help him understand his daughters unique needs.

In a memorandum dated December 4, 2006, the bureau stated that A.W. reported that she would really like her mother to obtain a home so she could live with her. She stated that she really loves her mother and misses her. A.W. reported having fun during her visits with her father. She stated that she would like to visit her father, but did not want to spend the night. She asserted that she wanted to return home after her visits with her father and that she wanted to continue to live with Edna.

The court held the contested 12-month status review hearing on December 11, 2006. Counsel for A.W. stated that he pretty much agreed with the recommendations of the bureau. He explained that A.W. wanted visitation to remain the same and did not want to have overnights with her father at this particular point in time. He also stressed that A.W. was thriving in Ednas home. He mentioned that Edna was going to request de facto parent status.

The court followed the bureaus recommendation and stated that it was not going to grant family maintenance at this time in large part because [A.W.] doesnt appear to be ready for it, even though father seems to be doing all the right steps and [A.W.] is becoming comfortable there and getting there. . . . After the court indicated that it intended to sign the de facto parent status for Edna, the court continued: I dont think the bruise on the neck is the biggest thing in the world, just that father needs to be sensitive to [A.W.s]what shes been through. And so its not about that. Its really more about [A.W.] not being ready yet to change homes. The court extended family reunification services to father until the 18-month review hearing.

Father filed a timely notice of appeal from the order following the 12-month status review hearing. On January 19, 2007, we consolidated this appeal with his earlier appeal of the disposition and six-week status review order.

DISCUSSION

I. Standard of Review

Father argues that substantial evidence does not support the disposition and six-month status review findings. He also maintains that substantial evidence does not support the 12-month status review findings.

In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the courts finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. (In re N.S. (2002) 97 Cal.App.4th 167, 172.) We have no power to judge the effect or value of, or to weigh the evidence, to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)

However, substantial evidence is not synonymous with any evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, [w]hile substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations]. [Citation.] The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. (Id. at pp. 1393-1394.)

II. Disposition and Six-Month Status Review Findings

In the present case, the juvenile court removed A.W. from her mother pursuant to section 361 and refused to place her with father, A.W.s non-custodial parent. Thus, the court had to find by clear and convincing evidence that placement with father would be detrimental to the safety, protection, or physical or emotional well-being of the child pursuant to section 361.2, subdivision (a). Although the lower court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.) The focus of the statute is on averting harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6, superseded by statute on another issue; In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.) In this regard, the court may consider the parents past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.)

Father argues that the juvenile court must state on the record the facts it relied upon in finding detriment ( 361.2, subd. (c)), and the court in the present case improperly relied exclusively on A.W.s preference not to live with her father when deciding not to place her with him. He maintains that the court may consider a childs wishes in making a placement decision where the child is of a certain age and clearly expresses his or her wishes, but the childs wishes may not be determinative. (In re John M. (2006) 141 Cal.App.4th 1564, 1568 [14-year-old childs wishes could be considered but could not be determinative].) However, in the present case, he claims that the court should not even have considered A.W.s wishes because she was so young. At the disposition and six-month status hearing she was just five years old. He asserts that no court has considered the placement preference of a child so young. Further, even if the court could consider her preference, father maintains that her wishes were unclear. At the disposition hearing, there was no report that A.W. wanted to live with Edna, only that she felt secure and safe at Ednas home. The court did not refuse to place A.W. with father simply because A.W. had indicated that she did not want to spend overnights with father. Rather, the court pointed out that A.W. did not appear to be ready for it . . . . The court explained that it did not believe that A.W. was ready yet to change homes. The courts conclusion that A.W. was not ready to stay with father was amply supported by the record that established she had not had the opportunity to remain in one stable environment.

Further, the record establishes that the court was concerned that father did not understand A.W.s special emotional needs. Although the court noted that it did not believe the bruise or hickey on A.W.s neck caused by father was that significant, it did point out that it indicated father needed to be more sensitive to the particular needs of A.W. The record supported this finding. A.W. suffered the bruise or hickey while playing a vampire game with father. At this time, A.W. was having serious boundary issues and touching others inappropriately.^[2] Thus, the court properly considered fathers behavior as being insensitive to A.W.s particular needs. Accordingly, we conclude the record supported the courts finding that placement of A.W. with father at this time, before he had completed his parenting classes and before he learned to be more sensitive to A.W.s particular needs, would be detrimental to A.W.s emotional well-being.^[3]

DISPOSITION

The judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Richman, J.

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^[1] All further unspecified code sections refer to the Welfare and Institutions Code.

^[2] The record indicates that A.W. was not sexually molested but she was in Rays home when he molested A.W.s cousin.

^[3] We need not consider fathers argument that the court could have retained jurisdiction to monitor A.W.s transition into her fathers home and to keep other permanent placement options open for A.W., because we conclude substantial evidence supported the courts disposition and six-month status review order, as well as the 12-month status review order.