Filed 8/17/17 In re J.M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Dana Shoffner, Deputy County Counsel, for Plaintiff and Respondent.

J.M.'s father, C.M. (Father), appeals from an order terminating his reunification services at a 12-month review hearing under Welfare and Institutions Code section 366.21.[1] Father argues that the juvenile court abused its discretion in terminating his services where the court continued services to J.M.'s mother, J.J. (Mother), and did not set a hearing under section 366.26. Father contends that under these circumstances, the court's refusal to provide him further services was contrary to J.M.'s best interests. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

J.M. was born in March 2014. In July 2015, Mother obtained a restraining order against Father as a result of domestic violence. Mother was granted full custody of J.M., and Father was granted supervised visitation. In September 2015, Mother moved from Sacramento to San Diego with J.M. Mother shared an apartment with a friend, Daniel A., who helped care for J.M. Father lived in Sacramento and was on probation.

In December 2015, J.M. came to the attention of the San Diego County Health and Human Services Agency (Agency) when Mother sought medical care for J.M. after she saw that his penis was swollen and bruised. A doctor examined J.M. and found that J.M. had swelling and bruising on his penis, bruises and a scratch on the left side of his face, a bruise on his forehead, a scratch on the side of his head, a bruise on his back, and old burn injuries on the inside of both of his thighs. Upon further examination, a doctor concluded that J.M. had been subjected to physical abuse.

Mother provided inconsistent explanations about J.M.'s injuries. She reported that J.M.'s injuries occurred while he was in Daniel's care, but she continued to allow Daniel to care for J.M. and did not believe that Daniel caused J.M.'s injuries. Further, Mother did not accept the medical determination that J.M.'s injuries were likely inflicted by someone and nonaccidental.

The Agency filed a petition under section 300, subdivision (b)(1), alleging J.M. had suffered or there was a substantial risk that he would suffer serious physical harm or illness as a result of Mother's failure to adequately supervise or protect him. The juvenile court detained J.M. in protective custody and provided Mother with liberal supervised visitation. The Agency later amended the petition to allege that Daniel physically abused J.M., including burning J.M. with hot scalding liquid, and Mother did not seek medical care for J.M.

An Agency social worker spoke with Father by telephone. The social worker had to end several conversations because Father yelled and cursed at her. During one conversation, Father said that "[Mother] just needs to die." Father reported that he had been physically abused as a child and that was why he was upset about the same thing happening to J.M. Father reported that he was willing to do everything necessary to have J.M. placed with him.

At a hearing in February 2016, the juvenile court made a true finding on the amended petition. The court ordered the Agency to develop a case plan for Father. The court also ordered the Agency to attempt to accommodate supervised visits for Father through Internet video calls.

In March 2016, the Agency reported that it had attempted to provide Father with reasonable services, but was concerned that Father had created barriers to the provision of services. For example, Father focused his efforts on the ethnicity of everyone involved in the case. The first time that Father spoke to J.M.'s foster mother, Father did not inquire about J.M.'s welfare. Instead, Father demanded to know the foster mother's ethnicity and yelled at her when she did not provide the information. He insisted that he did not want his son being cared for by "white people." Father called the social worker and demanded that J.M. be moved to an African American home.

At the disposition hearing, the court declared J.M. a dependent, removed custody from Mother, and found by clear and convincing evidence that placement with Father would be detrimental to J.M. The court placed J.M. in foster care and ordered reunification services for Mother and Father.

First Six-Month Review Period

Three weeks after the disposition hearing, the Agency filed a section 388 petition to modify Father's visitation. The Agency wanted to supervise all telephone calls between Father and J.M. and suspend any supervised visitation and Internet video calls until Father understood that he could not threaten social workers and J.M.'s foster parents and could not communicate with J.M. using profanity. The Agency reported that Father had become increasingly explosive and verbally abusive with the foster parents and social workers during phone calls with J.M.

Father also filed a section 388 petition. Father wanted a paternal aunt evaluated for placement and sought to have J.M. placed in a different foster home with African American foster parents. The court set an evidentiary hearing on Father's and the Agency's section 388 petitions.

At a contested hearing in April 2016, the court ordered the Agency to evaluate the paternal aunt and Father's pastor for placement and denied Father's request to place J.M. in a different foster home. The court denied the Agency's request to suspend Father's visitation. Instead, the court modified visitation to provide Father with a minimum of three calls per week in which a parenting coach could participate. The court ordered that Father could not use profanity or make threats during the visits, the conversations had to remain age appropriate for J.M., and Father could not have outbursts of anger. If Father violated those rules, the visit would be terminated.

The next day, Father called the foster mother and left a message stating that he hated her and she was going to hell. In the same message, Father threatened the social worker. Approximately 10 days later, Father left the foster mother another message, stating "I hope your [biological] son gets taken away . . . and you lose your life. I then hope your son is left alive so he realizes his family has been murdered."

At the time of the six-month review in September 2016, Father was still under the jurisdiction of the Sacramento probation department. He had served time in jail in May 2016 for violating the restraining order protecting Mother. Father was participating in a domestic violence prevention group. After Father was released from custody, his conduct improved and he communicated with J.M. at an age-appropriate level.

The Agency recommended continuing services for Mother and Father. The court kept J.M. in out-of-home care and ordered further reunification services for the parents. The court also ordered the Agency to evaluate Father's home.

Second Review Period

Approximately three months after the court had continued Father's reunification services, the Agency filed a section 388 petition to reduce Father's Internet video calls. The Agency reported that Father's calls with J.M. had deteriorated. Father had appeared on a video call without a shirt on, lying in bed with a topless female. During visits, Father made derogatory statements about J.M.'s foster parents and social workers. Father told J.M. that J.M. was a slave, the Agency was a slave master, and J.M. was being held against his will.

The Agency reported that Father visited in person with J.M. three times in November 2016, and the visits were appropriate. However, during several video calls, Father was inappropriate, used profanity, and was aggressive with J.M.'s caretakers and social workers. During one video call, Father complained that J.M. was distracted by the "black foster mom." He went on to tell the social worker, "all you white people just don't know what's best for my son." Father also stated, "I will never do another Skype call with my son if the black foster mom is in the room and you can quote me on that."

On another video call, J.M. avoided Father and repeatedly yelled "no" when asked if he wanted to talk to Father or show him toys. Father became frustrated and stated that he did not want J.M. in a room with toys. When a social worker explained that it was not in J.M.'s best interest to be in a room where he felt uncomfortable and asked Father if he wanted to continue the call, Father stated he did not and hung up. Father repeatedly called Agency workers foul names and left rude voicemail messages. On one message Father stated, "I can't even say what the fuck I really want to say. BUT most definitely I'm willing to go to jail over you, I'm definitely willing to take it there with you. You are most definitely pushing a line that your [sic] not ready for."

Before the evidentiary hearing on the Agency's section 388 petition, the Agency submitted its 12-month status review report. The Agency recommended that the court terminate Father's services and continue Mother's services to the 18-month date. The Agency also recommended that the court order no visitation for Father. J.M.'s caregivers expressed concern that Father's visits were negatively impacting J.M.

Father reported participating in domestic violence groups as mandated by his probation. However, the Agency had not received confirmation of Father's participation. Father had previously completed parenting education with his church pastor. Father did not continue the parenting education despite his pastor's recommendation that he do so.

Father continued to engage in aggressive, profane, and harassing phone calls to social workers, J.M.'s foster parents, service providers, and office staff. Father also threatened to harm the foster parents. During a call with J.M., Father yelled at the social worker. J.M. overheard, became upset, went to his bed, and pulled the covers over his head. After J.M. calmed down, Father spoke to him and said J.M. was being held against his will. When the social worker attempted to redirect the call, Father started yelling and J.M. became upset again. Thus, the social worker ended the call.

Later, the social worker spoke to Father on the telephone. Father asked the social worker whether it would be considered kidnapping or violating a court order if he took his son. Father made remarks about kidnapping J.M. and killing someone. Father stated, "I haven't killed anybody yet. My son is in too much danger for me to stand by idle. I need to do something." He continued, "If [the caregivers] died today what would you do?" Father also stated, "If I took my son you guys wouldn't find him" and "Murder is justified on a certain level and I feel my son is in danger."

On another occasion, Father was in a rage and yelled at the social worker, "you dumb bitch, I hope you die. Die dumb bitch die." The social worker informed Father he was in violation of the communication policy and cancelled his visit that day for violating the policy. Father then called the Agency receptionist 15 to 20 times cursing and yelling.

During Father's next visit with J.M., Father made positive attempts to engage with J.M. At the end of the call, Father asked J.M. for a kiss and J.M. blew him a kiss. Father and J.M. each said "I love you."

In a visit just prior to the 12-month review hearing, J.M. did not want to speak with Father. Father told J.M., "you know son they're keeping us apart. They don't want you to know me. We are not allowed to show any emotions ok? You have to be a cyborg or transformer. You understand that [J.M.]? They don't want us together." J.M. was not interested in talking to Father and appeared happier before the call than after it. J.M.'s mood improved when he saw Mother.

In another visit before the 12-month review hearing, Father spent his time with J.M. talking about how "these Mexican social workers are trying to keep [J.M.] from [his] black family." Father told J.M. that he was going to take him away. When the social worker warned Father about the inappropriate conversation, Father started yelling about how he could say whatever he wanted.

The Agency reported that Mother had made good progress in her services and had shown the ability to further progress. However, Father had not made any progress and became more threatening and argumentative when interacting with staff. The Agency reported that it had suggested, redirected, and educated Father on what was age appropriate for J.M., but its efforts were not successful. The Agency stated, "[F]ather is not open to the feedback, despite being redirected the [F]ather feels it [is] his right [to] speak to [J.M.] the way he wants to. The [F]ather has not demonstrated any insight in his services or by putting [J.M.'s] needs ahead of his own."

The court held a combined hearing on the 12-month status review and the Agency's section 388 petition to terminate Father's visitation. After considering the evidence, the court followed the Agency's recommendation and terminated Father's reunification services because he had not made significant progress with his case plan. The court also terminated Father's visitation, concluding visitation was detrimental to J.M. The court ordered further reunification services for Mother, finding Mother had consistently visited J.M., made significant progress in resolving the problems that led to removal, and demonstrated the capacity to complete the objectives of her case plan and provide for J.M.'s safety. The court determined that there was a substantial probability that J.M. would be returned to Mother by the 18-month review date.

DISCUSSION

Father argues that the juvenile court abused its discretion by terminating his reunification services where, at the same time, the court continued services to Mother and did not set a hearing under section 366.26. Father contends he demonstrated that he cooperated with services throughout the case and was capable of benefitting from further services. He further argues that "services to assist him in supporting [J.M.'s] future placement with [Mother were] critical to the successful outcome of this family."[2] We reject Father's arguments.

"When a dependent child is removed from parental custody, the court generally orders services for the family to facilitate its reunification. [Citations.]" (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 876 (Katelynn Y.).) "A parent, however, has no entitlement 'to a prescribed minimum period of services.' [Citation.]" (Ibid.) "Where, as here, the court continues one parent's services and does not set a section 366.26 hearing, it retains discretion to terminate the other (nonreunifying) parent's services." (Id. at

p. 881.)

"The parent seeking additional services has the burden of showing such an order would serve the child's best interests." (Katelynn Y., supra, 209 Cal.App.4th at p. 881.) In deciding whether to order additional services, the court evaluates whether the parent will utilize those services and whether services "would ultimately inure to the benefit of the minor." (In re Jesse W. (2007) 157 Cal.App.4th 49, 66.) We review that decision for abuse of discretion. (Katelynn Y., at p. 881.)

Here, the juvenile court provided Father with reunification services for 12 months. From the outset, Father was hostile towards Mother and social workers. He created barriers to receiving services, including verbally abusing J.M.'s foster parents and focusing on the ethnicity of persons involved in the case, rather than on J.M.'s best interests. More importantly, Father acted inappropriately during his visits with J.M. As we detailed above, the record is replete with examples of Father using profanity when communicating with J.M., making unsuitable comments, including that J.M. was a slave being held against his will, and conducting himself in a manner that was not age appropriate for J.M., such as appearing for a video call while he was lying in bed with a topless female.

Father contends that he demonstrated he was willing to cooperate with services and should receive further services because his pastor thought he would benefit from additional parenting education. From the beginning of the case, Father had participated in a program that was designed to teach him how to control his anger. Although Father may have participated in programs, Father did not demonstrate that he benefitted from the programs or implemented changes to benefit J.M. Father continued to engage in angry outbursts and was unable to control his emotions. For example, during a call with J.M. in January 2017, Father yelled at the social worker despite knowing that J.M. could hear him. J.M. became noticeably upset. When the call continued, Father engaged in an inappropriate conversation with J.M. and then yelled at the social worker who had attempted to redirect the conversation. The social worker had to end the call because J.M. was upset again. Father's actions did not show that he could apply the skills he had learned in his programs. Additionally, although Father's pastor had recommended that Father continue parenting education, Father did not do so. Thus, the record does not demonstrate that Father would utilize further services.

Further, Father did not make progress with the objectives of his case plan. Father's service objectives included: not breaking the law and avoiding arrests and convictions; not involving J.M. in attempts to control or intimidate Mother; learning deescalation techniques so as to avoid engaging in verbal and physical threats; not speaking negatively about Mother and caregivers in front of J.M.; utilizing techniques to control his negative behaviors and anger, including learning how to respond to J.M.'s foster parents and Agency staff without losing his temper; paying attention to J.M.'s health, safety, and well-being; and interacting with J.M. at an age appropriate level. Father did not meet these services objectives.

Although Father contends that he did not violate his probation during the last reporting period, the record shows otherwise. Father violated his probation during both the six-month and 12-month reporting periods. During the six-month review period, Father served 30 days in custody for violating the restraining order protecting Mother. During the 12-month review period, Father was incarcerated for two days for threatening the Agency.

Father also failed to meet his service objectives regarding making behavioral changes and controlling his anger. Father understood that his anger was frightening and upsetting to J.M. Despite recognizing the triggers for his anger, Father was unable to implement behavioral changes to control his outbursts. Father repeatedly used profanity, yelled, and made threats to J.M.'s caretakers and Agency staff. For example, in January 2017, Father yelled at a social worker because he was unhappy that his video call with J.M. would take place while J.M. was in his foster home. Father told the social worker, "I told you dumb bitch already that . . . I did not want my calls there. You lazy ass workers are trying to impede my visits." When the social worker informed Father that they could not change the venue for the call that day, Father became enraged and yelled, "you dumb bitch, I hope you die. Die dumb bitch die." After the social worker ended the call, Father called the Agency 15 to 20 times cursing and yelling. On another occasion, Father made remarks to the social worker about kidnapping J.M. and killing J.M.'s caretakers. Father's behavior was detrimental to J.M.'s welfare.

Further, Father did not act appropriately around J.M. and in J.M.'s best interests. For example, despite being told that he should wear a shirt during his visits with J.M., Father appeared for video calls without a shirt on. Father responded by stating that he has a right not to wear a shirt and he should not have to wear one because he is not a woman with breasts. Additionally, Father made numerous inappropriate comments to J.M., including that J.M.'s foster parents wanted to adopt J.M. and informing J.M. that he was a slave and the Agency was a slave master. Although Agency workers attempted to redirect the conversations and told Father his comments were not proper, Father persisted. Based on the record, it is evident that Father was unable to control his impulses and put J.M.'s needs ahead of his own.

Based on this record, the juvenile court acted well within its discretion in terminating Father's reunification services. As the court aptly noted, Father had not made significant progress with his services. There was no indication that Father's behavior would improve with further services and that continuing his services would benefit J.M. (In re Jesse W., supra, 157 Cal.App.4th at p. 66.)

Father suggests that continuing his services would serve J.M.'s best interests because services would assist Father in supporting J.M.'s future placement with Mother. This argument assumes that Father would have continuing contact with J.M. (See In re Alanna A. (2005) 135 Cal.App.4th 555, 565 [further services to a nonreunifying parent may be in a child's best interests where the nonreunifying parent is likely to have continued contact with the child].) However, Mother had a restraining order against Father that was effective until July 2018. Mother had learned how to recognize abusive relationships and the impact those relationships had on J.M. Mother expressed her desire to maintain a living environment free from violence so that J.M. felt safe. This evidence does not support Father's contention that he would assist in supporting J.M.'s transition back to Mother's care. Moreover, the juvenile court can terminate services for a parent who will have continuing contact with the child if, as here, the parent's "performance did not merit continued reunification services." (Ibid.)

Lastly, we note that "there is a secondary rationale for limiting services to the nonreunifying parent. The Legislature has recognized that in some circumstances, it may be fruitless to provide reunification services. [Citation.] In such a case, the general rule favoring reunification services is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (In re Alanna A., supra, 135 Cal.App.4th at p. 566.) This is such a case. Father was provided with 12 months of services, but failed to make significant progress or demonstrate that he would benefit from continued services. Under these circumstances, the juvenile court properly terminated Father's services.

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.