Filed 8/3/17 In re Darius S. CA4/3


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re DARIUS S., a Person Coming Under Juvenile Court Law.
_________________________________

ORANGE COUNTY SOCIAL SERVICES AGENCY,

Plaintiff and Respondent,

v.

D.N.,

Defendant and Appellant,






G054316

(Super. Ct. No. 16DP0516)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
Lisa A. Raneri, under appointment by the Court of Appeal, for Darius S.
* * *
D.N. (father) appeals from the juvenile court’s November 15, 2016, dispositional judgment removing four-year-old Darius S. from his custody. (See Welf. & Inst. Code, § 361, subd. (c)(1); all statutory citations are to this code unless noted). He contends the court abused its discretion when it continued the dispositional hearing (§ 352) and insufficient evidence supports the juvenile court’s finding that returning Darius to his custody would pose a substantial risk of harm to the child. Father complains there were reasonable means to protect Darius without removal. For the reasons discussed below, we affirm.
I
FACTS AND PROCEDURAL BACKGROUND
In May 2016, the Orange County Social Services Agency (SSA) filed a petition (§ 300, subd. (b)) alleging Darius had suffered, or there was a substantial risk he would suffer, serious physical harm or illness resulting from his parents’ failure to protect him. The petition alleged Darius’s parents willfully or negligently failed to provide him with adequate food, clothing, shelter or medical treatment due to their mental illness, developmental disability, or substance abuse.
According to the amended petition and SSA’s reports, in July 2014, father left Darius unattended in a vehicle on a hot day for at least 40 minutes while he shopped at the mall. Darius was under two years old at the time. Police officers found Darius hungry and warm to the touch, although he had not sustained heat-related injuries. Father told investigators Darius was sleeping when he arrived at the store and because he was physically unable to carry Darius, he left him napping in the back seat. He parked in a shaded parking spot and checked on Darius at least one time before completing his errands, but lost track of time. Father was convicted of child endangerment, served a jail term, and was placed on probation. He completed a parenting course as a condition of his probation.
On May 14, 2016, police officers came to the home after father reported Darius had run off and could not be located. Father stated he was taking Darius for a walk, but lost sight of him when Darius ran ahead of him. Father explained he could not run after Darius because of his physical injuries. Father later found Darius in the backyard while on the phone with authorities. Police officers observed father struggling to supervise Darius and found herbicide and sharp tools within Darius’s reach.
Based on the May 2016 and prior incidents, SSA took Darius into protective custody.
The petition alleged Darius might have unaddressed medical, psychological, and developmental needs. Mother reported she believed Darius was autistic, and father reported Darius had a mental disability. Although he was nearing four years old, Darius did not speak, he wore diapers, used a pacifier, drank infant formula, and walked on his tip-toes. He grunted and made squeaking sounds. Darius had not received routine pediatric care or immunizations, and had never been to a dentist. At the time SSA took him into protective custody, he was very thin and had dirt on his face and under his fingernails. He could not grab goldfish crackers out of an open bag, but could pick them up off a table. A school psychologist believed he had major developmental delays.
Before the jurisdiction hearing, the social worker visited father at his residence. He had formula, diapers, toys, and clothing for Darius. Father believed mother had mental health issues, but did not know whether she had received a specific diagnosis. Father had his own mental health concerns and was seeing a psychologist to deal with a history of depression. Father had been cohabiting with mother when Darius was born and helped raise the child and offered financial support. Mother refused to take Darius to a doctor despite father’s objections because she did not want him to be immunized. Lacking a biological relationship, father had no parental rights and mother would not authorize him to make decisions for Darius. The juvenile court found father to be Darius’s presumed father at the initial petition (detention) hearing. Father offered to participate in any services to regain custody. He visited Darius frequently and accompanied Darius to his medical appointments.
Father’s psychologist told the social worker father had major depressive disorder. She had managed his medications since August 2013, and met with him every month or two, but did not provide counseling services. She believed father’s diagnosis stemmed from a fear of losing his home, his unemployment, his limited income, and his relationship with mother and Darius. Mother moved out of father’s house to live with the maternal grandmother. Father’s psychologist believed father would be more stable without mother.
Darius adjusted well with his relative caretakers. He required significant dental work. An assessment concluded he might fall within an Autistim Spectrum Disorder and have other neurological issues. The assessment recommended further evaluation for autism, speech and developmental delays, and referral to a pediatric neurologist.
In August 2016, the parents pleaded no contest to the allegations of the amended petition.
Darius was diagnosed with Adjustment Disorder Unspecified and Autism Spectrum Disorder. Father began individual counseling and attended two sessions. His counselor reported father was “very open . . . [and] very eager to have a safe place where he can share his story and work on himself, the love, affection he feels for his son, along with wanting the very best for [Darius].” Father also continued to meet with his parent mentor, and he visited Darius with a monitor three times a week. He told told the monitor he sometimes lost Darius when they shopped and needed to ask other people and store employees for help in finding the boy. During one shopping trip, Darius climbed onto a handicap cart, turned it on and moved forward while out of father’s reach.
Psychologists (Evid. Code, § 730, hereafter section 730) appointed to assess whether mother could benefit from reunification services (see § 361.5, subd. (b)(2)) interviewed father as part of their evaluation. Both expressed concerns about father’s inability to understand why Darius had been removed from his custody. They believed father minimized the car incident because father believed he had been unreasonably punished and he felt Darius should not have been removed from his care.
By late October 2016, father’s counselor reported father had participated in 11 sessions; he was doing very well and progressing toward his goals. Father’s roommates provided letters to the social worker stating they would help with child care. The social worker inspected father’s home and found it to be slightly cluttered, but clean with no observable safety hazards. Father agreed he needed to keep a close eye on Darius. His knee was healing and he had regained enough mobility to keep up with the child. The social worker provided father with information about a parenting class for challenging children. Father e-mailed the social worker about his concerns for Darius, and he expressed regret over leaving Darius in the car. He understood it was “absolutely wrong and irresponsible” and he was ashamed of his actions.
SSA conducted a team decision meeting (TDM) on October 24, 2016, to address the possibility of returning Darius to father’s care. SSA felt father and Darius would benefit from participation in the Conditional Release with Intensive Supervision Program (CRISP). As a part of the CRISP, father would have an in-home coach, and participate in a class and support group for parents with behaviorally-challenged children so he could develop safe and appropriate parenting practices and establish a strong support network. SSA also recommended continued participation in weekly therapy.
On October 28, 2016, the social worker e-mailed father’s counselor expressing concern about the visitation monitor’s report that father may have bitten Darius and father’s multiple comments he did not believe Darius was autistic or required specialized care. Father told the monitor the child was a “biter” and he bit the child back to teach him not to bite others. He later denied saying this and claimed he was misunderstood. The counselor reported father agreed with the autism diagnosis and the need for services.
The court conducted the dispositional hearing in November 2016 after denying a request by SSA and father, opposed by mother and Darius, for a continuance so SSA could arrange to release Darius to father under the CRISP conditions. (§ 352.)
The social worker, Shelley Manzer, recommended in her testimony that Darius be returned to father under the CRISP conditions. Alternatively, she recommended reunification services. She believed release to either parent without intensive supervision placed Darius at risk, and she wanted father to participate in educational and support groups for children with autism and behavioral challenges. She also thought unannounced visits by a social worker would help ensure compliance with the case plan. She had no reason to believe father would not follow through with services for Darius’s autism, noting father visited Darius regularly and was appropriate during the visits. She could not explain why she had not lifted the visitation monitor given father’s appropriate interaction. She had conducted two inspections of father’s home since detention and found it appropriate. Father had not recently expressed a lack of understanding about leaving Darius unattended, and she agreed with father’s counselor that father took responsibility for what happened. Finally, Manzer had experienced a cultural communication barrier with father, who did not want an interpreter and preferred communication via text or email. She failed to advise the section 730 evaluator of father’s communication preferences.
Father testified he took care of mother during her pregnancy and Darius had lived with him since birth. Father explained he was the primary caretaker and sole financial provider. He took Darius to see a doctor on three occasions, but mother prevented further visits. He attempted to obtain custody of Darius through family court because he felt Darius was safer with him. In the July 2014 incident, he only left Darius in the car for 10 or 12 minutes. He understood the seriousness of the incident and never again would leave Darius alone in a vehicle. He believed it was fair he had been found guilty of a crime, but did not think it fair that he was incarcerated without his medication.
Father began weekly therapy a few weeks after Darius’s detention. One goal of therapy was to talk about his feelings regarding Darius and to take responsibility for the prior incidents. Father claimed therapy had helped a great deal. He learned a child should not be left unattended and he learned “modeling,” where a parent sets a good example for the child.
Father believed Darius had autism, but was unclear on the severity of the disorder. He visited a center in Orange County where the best autism specialists worked. Manzer recently gave him information about an educational class on autism, and he had attended one session.
Father agreed to follow up with medical appointments and adhere to case plan requirements. He was unemployed and therefore could devote all of his time to Darius. He would make sure Darius was always supervised and he would provide a family environment where Darius could not run into the street. He also promised to involve Darius in programs for children with autism.
Father’s counselor Erica Morin testified she had seen father on 14 occasions. She reviewed the social worker’s report identifying father’s actions, and the 2014 police report. Father’s goals in therapy as outlined in the social worker’s referral were to work on parenting issues with special attention to supervision of the child, coparenting with mother, and addressing father’s depression. Father demonstrated growth during his sessions. They discussed the car incident, how it could have been handled differently, and how he should seek support from others in the future. Father took responsibility for the incident, and understood why he went to jail. After discussing the incident nine or 10 times, father took responsibility in August, and had not wavered in accepting responsibility. Concerning the May 2016 incident, he did not understand why calling the police for help led to Darius’s removal.
Morin told the social worker she had no concerns about releasing Darius to father’s care. She acknowledged father had sent mixed messages about taking responsibility for his actions and whether he was at fault in the matter, but she was not concerned about this and believed father would provide Darius the necessary structure for his development.
At the close of testimony on November 9, the juvenile court suggested Morin observe a visit between father and Darius. Her testimony resumed on November 14. She noted Darius’s verbal ability was much lower than she was led to believe. Despite father’s positive interaction with Darius, she believed father must become better educated about how to communicate with Darius before the child could be returned. She was unsure whether father understood the level of supervision required.
Ryan Jordan, a clinical forensic psychologist and one of the section 730 evaluators, spoke with father on the telephone. He had difficulty gathering information. Father expressed he had been treated unfairly, and father noted nothing happened to Darius when he left him unattended in the car. Father did not appear to appreciate how severe the outcome could have been. Father also stated Darius did not have autism and he felt he could meet Darius’s needs.
Thomas Howell, the second section 730 evaluator, also spoke with father telephonically. He experienced cultural and language barriers with father and sensed father did not understand his questions. They spoke about the car incident and focused on the lack of harm to Darius. Howell felt father minimized the incident.
At the conclusion of the dispositional hearing, the court found Darius would be at risk if placed in father’s care based on the totality of the circumstances, including Darius’s special needs, father’s admitted difficulty in supervising Darius, father’s inclination to minimize the seriousness of past incidents, and his therapist’s belief it would be inappropriate to return Darius until father received further education on how to safely supervise Darius.
II
DISCUSSION
A. Motions to Continue Dispositional Hearing
Father contends the juvenile court erred by continuing the dispositional hearing on October 25, 2016, over his objection, and denying his November 7, 2016, request to continue the hearing to allow Darius to be released to him under the CRISP conditions.
Section 352 provides “the court may continue any hearing . . . beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. . . . [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. . . . [¶] (b) Notwithstanding any other provision of law, if a minor has been removed from the parents’ . . . custody, no continuance shall be granted that would result in the dispositional hearing, held pursuant to Section 361, being completed longer than 60 days after the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring such a continuance. . . . In no event shall the court grant continuances that would cause the hearing pursuant to Section 361 to be completed more than six months after the hearing pursuant to Section 319.” (In re J. I. (2003) 108 Cal.App.4th 903, 912 [appellate court reviews an order denying a continuance for abuse of discretion]; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 [juvenile court’s decision will not be reversed unless it exceeded the bounds of reason].)
The court conducted the initial detention hearing on May 18, 2016, and set a contested dispositional hearing for October 25, 2016. On that day, the juvenile court continued the dispositional hearing. The hearing was unreported and the court did not enter facts supporting the continuance in the minutes. The court denied a continuance on November 7, concluding it would exceed the period specified in section 352, and found no good cause to postpone the hearing.
Father argues if “the juvenile court proceeded with the dispositional hearing on October 25, releasing Darius to father under the CRISP conditions[, it] would not have exceeded the six-month deadline as the juvenile court claimed it did on November 7, 2016. Furthermore, because Darius would have been placed in Father’s custody under the CRISP conditions during the 30 days deemed a ‘continuance,’ calling it a continuance would have been promoting form over substance, an action contrary to Darius’s best interests.”
The record reflects all parties except father agreed on October 25 to continue the dispositional hearing to November 7. There was no reporter present, and the court’s minutes do not reflect why the court continued the matter to November 7. In the absence of a reporter’s transcript, an appellant must provide either an agreed statement or a settled statement if the issue raised on appeal requires consideration of the oral proceedings. (Cal. Rules of Court, rule 8.120(b).) Our review is limited to determining whether any error appears on the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521.) “‘Failure to provide an adequate record on an the issue requires that the issue be resolved against [appellant].’” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) Because we cannot determine from this record whether the juvenile court erred in continuing the matter to November 7, we must presume the court acted correctly.
The court acted within its discretion in denying the continuance on November 7. As noted, the juvenile court conducted the initial detention hearing on May 18, 2016. A 30-day continuance to release Darius to father under the CRISP conditions would have pushed the dispositional hearing beyond the six-month deadline in section 352. Nor was the court required to accept SSA’s recommendation to release Darius to father under the CRISP before the hearing. Notably, that recommendation preceded the testimony by father’s counselor questioning whether he understood the level of supervision Darius required, and both section 730 evaluators also noted father minimized leaving Darius in the car. The court therefore did not abuse its discretion in concluding there was no good cause or exceptional circumstance on November 7 to continue the dispositional hearing. The court therefore was required to proceed to a dispositional hearing to ascertain whether Darius was at risk in father’s care necessitating removal.
B. Sufficiency of the Evidence to Support Dispositional Order
Father also challenges the sufficiency of the evidence to support the juvenile court’s dispositional order removing Darius from his care. We conclude sufficient evidence supports the court’s decision.
Section 361, subdivision (c), provides in part: “A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence. . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . physical custody. . . .”
In reviewing a challenge to the sufficiency of the evidence supporting dispositional findings, this court determines whether substantial evidence, contradicted or uncontradicted, supports the findings. (In re I.J. (2013) 56 Cal.4th 766, 773.) In making the determination, the court draws 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. Issues of fact and credibility are the province of the trial court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The reviewing court does not reweigh the evidence or exercise independent judgment, but merely determines if there are sufficient facts to support the findings of the trial court. “‘“[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate].”’ [Citation.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321; see also In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Cole C. (2009) 174 Cal.App.4th 900, 917 [jurisdictional findings constitute prima facie evidence the child cannot safely remain in the home; removal may be appropriate even if parent not dangerous and child was not harmed; court may consider the parent’s past conduct and present circumstances in preventing harm to child].)
The juvenile court found Darius was at risk if placed in father’s care based on the totality of the circumstances, including Darius’s special needs, father’s difficulty in supervising Darius, father’s inclination to minimize the seriousness of the incidents that prompted the court’s intervention, and father’s therapist’s belief it would be inappropriate to return Darius until father received further education regarding safely supervising Darius.
Father asserts “he adequately addressed these issues prior to disposition” and “there were reasonable means to protect Darius without removing him from Father’s custody.” He emphasizes that he took full responsibility and admitted he demonstrated extremely poor judgment in July 2014 by leaving Darius in the car unattended and placing Darius at great risk of harm. Father vowed to never leave Darius unattended again. But at various points in the case father tended to minimize his conduct or felt he had been treated unfairly. He also admits he only “began to take responsibility for his actions” in August, a few months before the dispositional hearing. It was for the juvenile court to assess father’s credibility, and determine whether father had been misunderstood, and whether he had truly internalized and accepted the risk his prior actions posed toward Darius.
Father asserts he understood Darius was autistic, accepted the diagnosis, and was willing to participate in all services, courses, and support groups necessary to support Darius. Morin’s testimony demonstrated father had understated the extent of Darius’s disability to her. After reviewing SSA’s reports and observing a visit between Darius and father, she noted Darius’s verbal ability was much lower than she was led to believe. She was unsure whether father understood the level of supervision required and she therefore recommended father gain more education concerning Darius’s special needs before returning the child to his care. At the time of the dispositional hearing, although father expressed a willingness to participate in services, courses, and support groups, there was no evidence he yet had availed himself of these services or investigated support groups.
Father states he understood the need to maintain constant supervision of Darius and asserts he was physically able to do so. As noted, after observing a visit, father’s therapist Morin stated she was unsure whether father understood the level of supervision needed for Darius. Again, it was for the juvenile court to assess father’s credibility, and determine whether he comprehended the level of supervision required to manage Darius.
Father argues reasonable means existed to protect Darius short of removal, namely that he immediately participate in the appropriate educational courses, allow for unannounced visits by the social worker, allow a parent coach into his home and ensure that Darius attended medical appointments, including Regional Center services. Father states he was aware of the significance of meeting Darius’s needs and expressed a willingness to accept intensive supervision, he had followed through with services, including therapy, and there was no reason to believe that he would not follow through with services to address Darius’s autism. He testified he would follow up with Darius’s doctor’s appointments and other services. He had visited a center in Orange County where autism specialists worked, had attended an educational class on autism, and would involve Darius in programs for children with autism. He did not work and promised he could give Darius all of his time. He would make sure Darius was never alone and always supervised, and his roommates expressed a willingness to assist with childcare. His home was clean with no observable safety hazards. He visited Darius regularly, and appropriately cared for and supervised him during the visits. Darius was very happy and excited to see father during visits and upset when they parted.
Father cites In re A.E. (2014) 228 Cal.App.4th 820, 822. There, the appellate court held the juvenile court erred by removing a three-year-old girl from her father’s custody for a single occasion of discipline by spanking her with a belt on her legs and buttocks. The father was remorseful, committed to learning better child-rearing techniques, had no prior history with the social services agency, and no criminal record.
Here, as noted, father failed to adequately supervise Darius on several occasions, one of which resulted in a criminal conviction. Darius had special needs, and father’s therapist testified at the dispositional hearing Darius should not be returned until father received additional education and guidance in supervising and communicating with his special needs child. The other case relied on by father affirmed a removal order and does not provide a basis to reverse the dispositional order in this case. (In re John M. (2012) 212 Cal.App.4th 1117, 1120 [among other things, mother left blind, autistic son in the trunk of a car without adult supervision and failed to ensure he received medical care and access to Regional Center appointments; court rejected argument he could have remain placed with her under strict supervision noting she had violated court orders in the recent past].) The juvenile court did not err in determining no reasonable means existed to protect Darius short of removal.

III
DISPOSITION
The November 15, 2016, dispositional judgment is affirmed.



ARONSON, J

WE CONCUR:



O’LEARY, P. J.


BEDSWORTH, J.