In re Kellen V.

Filed 5/1/07 In re Kellen V. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Hideo Chino, Commissioner. Affirmed.

David V., the father of Kellen V., appeals the juvenile dependency court's six-month review hearing order that continued Kellen's placement in a group home. David contends there is no substantial evidence to support the finding that returning Kellen to him would have been detrimental to Kellen. We affirm.

BACKGROUND

In February 2006, when Kellen was six years old, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition under Welfare and Institutions Code^[1]section 300, subdivision (b).^[2] The petition alleged that Kellen was exposed to violent confrontations between his mother (Kimberly H.) and her friend, and that David and Kimberly had a history of domestic violence. At the time the petition was filed, Kimberly was visiting San Diego with Kellen, and David remained at home, in Las Vegas, Nevada where he remained throughout the proceedings. Kellen was detained in Polinsky Children's Center and then at Casa de Amparo. In March, the court entered a true finding on the petition.

At the May 18, 2006 dispositional hearing, the court ordered that Kellen be placed in a foster home and that he be detained pending the placement. Due largely to Kellen's behavioral problems, an appropriate placement was not found, and he remained at Casa de Amparo for approximately six months.

On August 17, 2006, the Agency filed a supplemental petition requesting that Kellen be placed in a group home. On August 18, he was detained in a group home. On October 5, the court made a true finding on the supplemental petition and ordered Kellen placed in a group home. Kellen remained in the same group home throughout the remainder of these proceedings.

At the December 4, 2006 six-month review hearing, the court found that David had made substantive progress with his case plan and had substantially alleviated or mitigated the causes of Kellen's out-of-home placement. It found, however, that returning Kellen to David would be detrimental to Kellen's emotional well-being because he continued to require intensive individual and group therapy, and the same level of care was not available in Las Vegas. The court continued Kellen's placement in the group home. It authorized Kellen to visit David from December 22, 2006 to January 8, 2007, or until school started, as long as David provided appropriate childcare. Finally, it required that a special hearing be set before Kellen was placed with David.

In an earlier appeal, challenging the dispositional judgment, this court rejected David's contention that "he was entitled to immediate custody of Kellen pursuant to . . . section 361.2 because he was a non-custodial, non-offending parent." (In re Kellen V. (Jan. 26, 2007, D048635) [nonpub. opn.].) This court stated, "Technically speaking, at the time of the proceedings David had obtained a custody order in Nevada. He was therefore not a non-custodial parent. In any event . . . section 361.2, subdivision (a), allows immediate placement unless the court determines placement with the non-custodial parent would be detrimental to the child. Here David and Kimberly were engaging in serious domestic violence in Kellen's presence. Kellen was afraid of David and admitted that David was also physically abusive to him. Kellen did not want to visit with David. Shortly before the proceedings at issue here, David had been incarcerated for domestic violence. In light of the evidence before it, the court did not err in determining it would be detrimental to Kellen if he were immediately returned to David." (Ibid.)

DISCUSSION

David contends there is no substantial evidence to support the six-month review finding that returning Kellen to him would have been detrimental to Kellen.

Section 366.21, subdivision (e) sets forth the requirement for a detriment finding. At the six-month review hearing, "the court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment." ( 366.21, subd. (e).) "[T]he decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child." (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.) The showing of detriment is not restricted "to the type of harm which necessitated dependency intervention." (Ibid.)

We apply the substantial evidence test. (In re Alvin R. (2003) 108 Cal.App.4th 962, 974.) We review the record in the light most favorable to the juvenile court's order, indulging in all reasonable and legitimate inferences to uphold the finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the evidence and can determine only whether there is sufficient evidence to support the finding. (In re Jacqueline G. (1985) 165 Cal.App.3d 582, 585.) When the facts support two or more interpretations, we do not substitute our interpretation for that of the juvenile court. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)

The record shows Kellen was "exposed to an extraordinary amount of violence" between David and Kimberly as well as to their "significant substance abuse." This had caused profound psychological damage to Kellen. As a result, he saw himself in a negative light, was unable to trust his environment, felt no sense of stability, had "significant impairments in his ability to appropriately attach with and bond to others," had "extremely poor impulse control," and was aggressive and assaultive. David's substance abuse had led Kellen to be fearful of David.

While at Casa de Amparo, Kellen threatened suicide several times, tried to hurt himself, and tried to leave the facility. He was aggressive and violent toward other children on a daily basis and was aggressive and violent with staff members as well. He bit, kicked, hit, and spit on classmates and peers. He had very low impulse control and escalated rapidly.

At Casa de Amparo, Kellen participated in individual therapy twice a week as well as some group therapy. He made significant improvement with his self-destructive behavior. Psychologist M. Bruce Stubbs evaluated Kellen on July 12, 2006, near the end of Kellen's stay at Casa de Amparo. Dr. Stubbs concluded that Kellen was unlikely to succeed in a traditional foster placement and would "need a high level of care for an extended period of time in order to be able to remediate the many psychological deficiencies which he currently is exhibiting."

By the time Kellen was moved to the group home in August 2006, he no longer hit himself or banged his head. He had learned to manage his anger better, and his behavior had improved significantly. At times, he had been able to ignore his frustrations or apologize, and he responded to some adults. He continued, however, to be verbally and physically aggressive, and to become frustrated easily. At first, there were no reports of significant incidents or behavioral issues in the group home. By the December six-month review hearing, however, the social worker had received a report that Kellen had spit on one child and hit or kicked another child. Kellen attended therapy twice a week in the group home. He also participated in group therapy, and received psychiatric monitoring and other services as needed.

At the outset of the case, David told the social worker that he had a history of methamphetamine use. He said he relapsed after four years of sobriety, and had recently been clean for eight months. He also told the social worker that he was participating in a court-ordered 52-week domestic violence program due to an arrest for spousal abuse. At first, he denied being violent with Kimberly. A short time later, he acknowledged that he had "really bad drug induced rage" and had been violent with Kimberly in Kellen's presence. He said that they had separated, she had obtained a restraining order, and he had not seen or spoken to Kellen in seven months. He took some of the responsibility for Kellen's problems and said he would do whatever was necessary to have Kellen returned to his care.

David began supervised visits with Kellen in March 2006. By June, he was driving to San Diego every weekend to visit Kellen. In September, he began three-hour unsupervised visits. In October, the court authorized unsupervised overnight visits and, despite the financial strain, David had overnight unsupervised visitation from Saturday to Sunday every weekend.

David participated in services in Nevada at his own expense. Near the beginning of the case, he reported that he had enrolled in an outpatient drug treatment program, had started to attend Narcotics Anonymous meetings, and had sought out individual counseling and a batterer's treatment program. By May 2006, he had provided the social worker with two drug test results and documentation that he had completed a parenting program. By December, he had completed at least 75 percent of his 52-week domestic violence program. He claimed that he had completed his 30-session substance abuse treatment and testing program, but the social worker did not have verification, which David said he could not obtain until he paid a fee. He testified that he attended at least one Narcotics Anonymous meeting a week and he was willing to continue random drug testing. He had completed approximately four months of therapy and was still attending. He was cooperative with the social worker and willing to accept further services and do anything that was required of him.

At the December 2006 six-month review hearing, David testified that he was in weekly contact with Kellen's therapist. David agreed that Kellen needed continued therapy, but he had not made arrangements for Kellen's therapy or other services in Las Vegas. David testified that his insurance would pay for therapy, but he did not know how many sessions would be covered. He said that he was on a waiting list for subsidized daycare, and in the interim would use "regular" daycare, but apparently had not discussed with group home personnel whether Kellen needed specialized daycare.

The Agency's social worker testified that in view of David's history of domestic violence and substance abuse, he and Kellen would have to be monitored if Kellen were placed with him. The social worker believed that this could not be accomplished without approval pursuant to the Interstate Compact on the Placement of Children (ICPC) (Fam. Code, 7900 et seq.), although she had not discussed with Nevada social workers whether they would provide courtesy supervision. Earlier in the case, the Agency had instituted ICPC proceedings. In May 2006, Nevada social workers determined that David had not completed enough of his domestic violence course to be considered for placement. In August, Nevada social workers declined to conduct a home study due to undisclosed negative information regarding David's parents, with whom he lived.^[3] In November, a Nevada social worker said that before David could be considered for placement, he would have to obtain his own home and make plans for childcare that did not include his parents. While ICPC approval would result in the availability of Nevada's family preservation program, including in-home services, Nevada would pay for only two therapy sessions per month for Kellen, although San Diego County might pay for additional sessions.

The Agency's social worker concluded that it would be detrimental to place Kellen with David. If David were living in San Diego, the social worker would have no concerns about the placement because the Agency would be able to provide monitoring and family maintenance services, including weekly therapy for Kellen; the same intensive behavior coaching program he had in the group home, if needed; and in-home services.

Citing In re John M. (2006) 141 Cal.App.4th 1564, David contends that the Agency would have recommended Kellen's return if he lived in California, but erroneously believed that ICPC approval was required because he lived in Nevada. While there are some similarities between In re John M., and this case, In re John M., is distinguishable in several important respects.

The basis for the dependency in In re John M., supra, 141 Cal.App.4th 1564 was the physical abuse of John by his mother. (Id. at pp. 1567-1568, 1571.) She lived in California with John, while John's father, Dewayne, lived in Tennessee. (Id. at p. 1567-1568.) John had been oppositional and aggressive from early childhood, and had been hospitalized for uncontrollable aggression. (Id. at pp. 1570-1571.) He had cognitive difficulties and did not trust adults. (Id. at p. 1570.) He suffered from serious emotional disturbance and attention deficit hyperactivity disorder but did not consistently take his prescribed medication. (Id. at p. 1571.) He was in counseling, and psychiatric and psychological evaluations and a medication assessment were to be scheduled. (Ibid.)

At the dispositional hearing in In re John M., supra, 141 Cal.App.4th 1564, the juvenile court concluded that it would be detrimental, within the meaning of section 361.2, subdivision (a),^[4]to place John with Dewayne. (Id. at pp. 1568-1569.) Dewayne appealed. This court noted that the detriment finding under section 361.2, subdivision (a) must be made by clear and convincing evidence (id. at pp. 1569, 1571) and concluded that the Agency had not met its burden of proving detriment (id. at pp. 1570-1571). This court also determined that ICPC compliance was not a prerequisite to John's placement with Dewayne. (Id. at p. 1575.)

In re John M., supra, 141 Cal.App.4th 1564 is distinguishable from the instant case because the dependency there was based on physical abuse by John's mother, not by Dewayne. By contrast, David's history of violence with Kimberly was one of the reasons the dependency petition was filed. Moreover, in In re John M., there was no evidence that Dewayne was responsible for John's serious problems. Here, David's substance abuse and violence were a direct cause of Kellen's severe emotional and behavioral issues. Furthermore, as noted above this court has rejected David's contention that he was a noncustodial, nonoffending parent. (In re Kellen V., supra, D048635.)

One of the components of the juvenile court's detriment finding in In re John M., supra, 141 Cal.App.4th 1564 was John's need for services. (Id. at p. 1570.) Addressing that component, this court noted that, "the social worker admitted that she had no information that Dewayne was unable to meet John's special needs." (Id. at p. 1571.) In re John M., is distinguishable on this point as well. Here, there was evidence that David was unable to meet Kellen's special needs by providing the frequency of therapy and intensity of behavioral training that Kellen received in San Diego.

In making its detriment finding, the court here noted that David was progressing, but he had not completed his services, and he needed to establish a residence, find an after-school program, and confirm that Kellen's current level of services would continue. The court found that Kellen's services were critical to his health, and that he was benefiting from the frequent and intensive services offered in his group home. The court concluded that in view of the above factors and Kellen's age, it was necessary for him to remain in his placement.

Because "detriment" has no clear-cut meaning, courts making placement decisions must have flexibility based on facts unique to each child and parent. (See Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 66.) Over the course of this case, David participated in a variety of services and visited with Kellen regularly despite the geographical distance and financial strain. To David's credit, he recognized that he was partially responsible for Kellen's severe difficulties, and acknowledged that Kellen needed continued therapy. While Kellen's behavior had improved in the structured settings of his San Diego placements, he still suffered from the effects of his exposure to his parents' violence and substance abuse and still had great emotional needs. Indeed, such emotional damage can be grounds for a dependency. ( 300, subd. (c) [a dependency is warranted when "[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent . . . or who has no parent . . . capable of providing appropriate care"].) The level and intensity of services vital to Kellen's emotional well being, and the monitoring necessary to ensure his safety, could not be assured in Nevada.^[5] Given Kellen's emotional damage and needs, a change of placement would have created a substantial risk of more emotional suffering. Substantial evidence supports the court's finding that Kellen's return to David would create a substantial risk of detriment to Kellen's emotional well-being.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Section 300, subdivision (b) provides for a dependency when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . ."

^[3] David argues, "There are serious constitutional violations involved in asserting that the grandparents' home is unacceptable for placement and refusing to disclose the reason for that assertion under the cloak of confidentiality." We need not address this issue, as there was substantial evidence of detriment aside from the housing issue.

^[4] Section 361.2, subdivision (a) states: "When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, 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, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child."

^[5] Contrary to David's assertion, the court's authorization of a two-week, unsupervised visit does not negate the existence of detriment. Such a visit, to be concluded by Kellen's return to the group home, is vastly different from a placement.