In re Kameron S.

Filed 10/10/06 In re Kameron S. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County. Stephen Marpet, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Barbara S. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Leonard L. Linares, Deputy County Counsel, for Plaintiff and Respondent.

_____________________________

Kirk, the father of minors Kameron and Aaron, appeals from the jurisdictional and dispositional orders of the juvenile court. The children were detained by the Department of Children and Family Services (“the Department”) after their mother[1] left them at a homeless shelter and failed to return. Father and mother were not married and not living together at the time the children were detained. Father contends that as to him there was no substantial evidence supporting the juvenile court’s jurisdiction or the removal of the children from his custody. Father further contends the court abused its discretion when it ordered monitored visits for him and erred when it ordered him to attend a parenting class and participate in individual counseling. We affirm.

BACKGROUND

On November 23, 2005, the Department detained Kameron and Aaron, along with their sister Caley.

On November 30, the Department filed a petition pursuant to Welfare and Institutions Code section[2] 300, subdivisions (b) and (g), alleging mother left the children at a homeless shelter, failed to return for them, and failed to make a plan for their ongoing care, supervision and the basic necessities of life, including food, clothing, shelter and medical care, which placed the children at risk of harm.

The petition alleged father was unable to provide for the children’s care, supervision and the basic necessities of life, including food, clothing, shelter and medical care, which placed them at risk of harm.

The detention report indicated the social worker spoke to father on the telephone. Father stated he was unable to provide for the children, lacked housing and wanted the children to be with his mother.

At the detention hearing, the court appointed counsel for father, who had called the court saying he was having transportation problems and could not be present. The court ordered the children be detained from mother and father and ordered monitored visits for the parents after they contacted the Department. The court ordered the children be allowed an extended visit with the paternal grandparents, who were present at the hearing, pending a pre-release investigation.

In December, the court extended the children’s visit with the paternal grandparents as the Department’s approval of their home had not yet been granted.

Father was not present at the pre-trial resolution conference on January 11, 2006. An amended petition was filed adding counts against mother and the father of Caley.

The jurisdiction/disposition report included interview statements. Kameron said he wanted to live with his father and had lived with him for two years. Kameron had not seen father since November because his grandmother was “‘kind of mad at him.’” Aaron said: “‘We don’t see our dad much,’” and “‘I like him but we don’t see him much.’” The paternal grandmother stated father had lost his job before last Christmas and had the children “‘a few years ago for a little while.’”

Father claimed he had provided mother with clothes and money for the children, but acknowledged he was unable to care for the children due to his economic circumstances. Father wanted the children to live with his mother until his living situation was stable. The maternal aunt was aware father did not have a stable place to live.

Mother’s stepmother stated it was her understanding that because of issues, father did not have a home and had left the children with their mother. The stepmother had no opinion of father, but said she did not “‘feel comfortable’“ with father having the children, and they were “‘better off’” with their grandmother. The matter was scheduled for a contested adjudication on February 2.

Father did not appear on February 2 due to transportation problems, but authorized his counsel to proceed on his behalf. Counsel made a motion to have father stricken from the petition, which would have made him a nonoffending parent, arguing father had made an appropriate plan for the children. The court denied the motion. The court then proceeded to disposition, found the allegations against father were true and declared the children dependents of the court. By clear and convincing evidence, the court found that removal of the children from the custody of their parents was necessary and placed them with the paternal grandmother. The court ordered family reunification services for father and a case plan that included a parenting education class and individual counseling to address the case issues. The court ordered monitored visits for father.

Father filed a timely notice of appeal.

DISCUSSION

I. Jurisdiction/Removal

Father contends there was no substantial evidence supporting either (1) the jurisdiction of the juvenile court, or (2) the removal of the children from his custody.

A. Jurisdiction

“‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.’ “‘If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed . . . .”’” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

Father contends there was insufficient evidence to sustain the petition because he was the nonoffending parent and had made an appropriate plan for the care of his children. The court denied father’s motion to be declared a nonoffending parent. Citing In re S. D. (2002) 99 Cal.App.4th 1068, 1079, father notes courts have declined to sustain a section 300, subdivision (g) petition where an incarcerated parent had arranged for the care of a child. Father was not incarcerated.

Father further argues the evidence did not show a substantial risk of serious harm as required by section 300, subdivision (b). (In re Rocco M., supra, 1 Cal.App.4th at p. 823.) Even though the children came to the attention of the Department because their mother left them at a homeless shelter with no provision for their ongoing care and supervision, the record establishes father also could not assume responsibility for their care and could not provide them with the basic necessities of life. Father’s inability to provide his children with the basic necessities of life placed them at substantial risk of harm and supported the court’s assuming jurisdiction.

B. Removal[3]

“Before the court may order a minor physically removed from his or her parent, it must find, by clear and convincing evidence, the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor can be protected without removal. (§ 361, subd. (c)(1).) A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (Citation omitted.) (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136 disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

In the instant case, the children were not removed from father’s custody as he did not have physical custody of the children when they were detained by the court. As discussed above, the fact father was homeless and unable to provide the children with the basic necessities of life supports their removal and not placing the children with father at that time. Father’s suggestion that the court could have made a home of parent order and allowed him to make an appropriate plan for the children is without merit as he had no home and no income.

II. Court Orders

A. Monitored visits

“A juvenile court’s determination as to whether parental visits are in the best interests of a dependent child may be reversed only upon a clear showing of abuse of discretion. The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Citations & internal quotation marks omitted.) (See In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.)

Father asserts monitored visits were an abuse of discretion because there was no evidence of a risk of harm or danger to the children, he had a good relationship with his sons, there was no evidence he refused to cooperate, and the only reason he did not have custody was because he was unemployed. Father’s inability to provide his children with the basic necessities was evidence of a risk of harm or danger, his unemployment seems to have been long-term as he was homeless, and his friendship seems to have been superficial as Aaron said he had not seen much of father. Moreover, father had not appeared in court or met with the Department personally. Accordingly, the court did not abuse its discretion in ordering monitored visits, at least until more was known about father and his ability to parent and provide for his children.

B. Parenting and Counseling

Pursuant to section 362, subdivision (c), a court can order a parent to participate in programs designed to eliminate the conditions which led to the court findings. Such findings are also reviewed for substantial evidence. (In re Jasmin C. (2003) 106 Cal.App.4th 177, 180.)

Father argues he was the non-offending parent, a description the court rejected, and his parenting skills were not at issue. Given father’s unemployment and non-custodial status, his parenting skills were at issue. There is no indication of what kind of parental role or parental relationship father had with his sons in the past. Father was not able to assume a parental role at that time. Thus, father’s parenting skills were at issue, and it was appropriate for the court to order father to attend a parenting class and counseling to assist him if he wanted to acquire custody of the children in the future.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J. JOHNSON, J.

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[1] Mother did not appear at any of the hearings.

[2] All statutory references are to the Welfare and Institutions Code.

[3] The Department argues father waived review of the dispositional orders. Although father did not object to orders made at the disposition hearing, as he was not present, we address his arguments on the merits.