In re K.J.

Filed 4/3/06 In re K.J. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE

APPEAL from orders of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge. Affirmed.

Leslie A Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent Los Angeles County Department of Children and Family Services.

Andre F. F. Toscano, under appointment by the Court of Appeal, for Plaintiff and Respondent George J.

__________________________

INTRODUCTION

Appellant R.S. (mother) is the mother of three children, K. J. (born 1993), Je.B. (born 1995), and La.B. (born 1999). This appeal concerns only the oldest child, K.J., who was 11 years old when detained.

Mother appeals the juvenile court's order following a contested disposition hearing. The juvenile court found by clear and convincing evidence that return of K.J. to mother's custody would result in a substantial risk of detriment to K.J. The court placed K.J. with his father, a non-offending parent who lives in Illinois. The court then terminated its jurisdiction and entered a family law order awarding sole legal and physical custody of K.J. to father. The court granted mother unmonitored day visitation with K.J. during summer vacations and gave the Los Angeles Department of Children and Family Services (DCFS) discretion to liberalize the visitation when mother completed her case plan.

We affirm. The juvenile court's dispositional order is supported by substantial evidence. In addition, the juvenile court did not abuse its discretion by issuing the family law order giving father sole legal and physical custody, and mother unmonitored day visitation, subject to more liberalized visits when mother completed her case plan.

FACTUAL AND PROCEDURAL BACKGROUND

In this case, mother had three children, K.J., Je. and La. Je. B., Sr. (stepfather) is stepfather of K.J. and the father of Je. and La. Stepfather is not a party to this appeal.

George J. (father) is the father of K.J. He lives in Illinois. Father is a party to this appeal with appointed counsel.

1. Juvenile Dependency Petition

On October 21, 2004, the DCFS filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (d) and (j).^[1] The petition, as sustained, alleged that on prior occasions stepfather inappropriately physically disciplined Je. and La. and that mother refused to take action to protect the children. The petition also alleged that mother and stepfather had a history of domestic violence, to which all three children were exposed, and that stepfather had a violent criminal history.

At the time of the initial investigation, mother and the three children were living with the maternal grandmother. Mother had recently separated from stepfather due to domestic violence, which the children had witnessed. K.J., Je. and La. were acting aggressively. Mother tried to get them into counseling, but stepfather refused. In addition, stepfather encouraged the boys, K.J. and Je., to act out and told them to call protective services if any adults tried to stop them.

Mother confirmed that stepfather had physically abused her and Je. and La., and as a result, the children were out of control. K.J. witnessed the abuse.

Mother stated that stepfather often visited the children. Mother refused to obtain a restraining order against father, suggesting to the social worker that the children be sent to live with stepfather because she could not care for them. The social worker conducted individual interviews with Je. and La., who confirmed that stepfather physically abused them with a belt.^[2]

The social worker informed mother that the children were at risk and needed immediate counseling. The social worker also informed mother that stepfather could not visit the children until the DCFS had completed its investigation. Mother agreed not to allow visitation.^[3] The social worker noted that mother appeared very scared of stepfather. Mother stated that she did not want him to be angry for what had been reported.

The DCFS investigation revealed that stepfather had been physically abusing mother for approximately eight years. The investigation confirmed that stepfather had physically abused Je. when he tried to stop stepfather from physically abusing mother. Stepfather also physically abused Je. about his report card. Stepfather hit the boy and threw him on the ground. Je. bumped his head and was hurt by the confrontation. The DCFS also discovered that mother had not moved out because of stepfather's domestic violence; but that stepfather had kicked mother out for refusing to listen to him. Mother's relatives were afraid of stepfather and had tried for years to help mother, who only defended stepfather.

The DCFS also learned that despite mother's agreement not to allow stepfather to visit during the investigation, that she had permitted the children to spend a weekend with stepfather. The DCFS detained the children and suggested to mother that she enter a shelter and stop all contact with stepfather.

The children, mother and stepfather were present for the initial detention hearing. The court appointed counsel for K.J.'s father, George J., who resided in Springfield, Illinois. The court detained the children from parental custody. The court ordered the DCFS to investigate father's home as a possible placement for K.J. The children's attorney informed the court that K.J. listed father as his first preference for placement, indicating that he had spent a summer with father. The children were placed with a foster family.

The court ordered family reunification services for the parents, therapy for the children, and monitored visitation, with the DCFS having discretion to liberalize. The court also ordered mental health assessments for K.J. and Je.

2. Juvenile Court Releases K.J. to Father

By the time of the November 4, 2004, hearing, the DCFS had interviewed father. He spent four years and nine months in the army. He had been employed by SBC for five years. He had paid mother child support and had a family law order giving him visitation with K.J. The DCFS concluded that father was a non-offending parent. K.J. reported that if he could not live with his mother, he wanted to live with father.

Father appeared at the hearing. Without objection from any party, the juvenile court released K.J. to father's custody.

3. The Jurisdictional Hearing

By the time of the jurisdictional hearing, K.J. was living with father in Illinois. Je. and La. resided together in a foster home.

The DCFS provided the juvenile court with a history of the family's involvement with social services. In 1998, the Riverside County Department of Children and Family Services opened an investigation when mother was involuntarily hospitalized after walking into a police station and talking about suicide. Mother told the police that she was a victim of domestic violence on a daily basis. The Riverside agency investigated and deemed the allegations inconclusive.

In March 2002, the Riverside agency conducted another investigation after receiving a referral that the maternal grandfather had molested K.J. on a visit while mother was not present. The allegations were deemed substantiated. The maternal grandfather was convicted of related charges and sent to prison.

In addition, the Riverside agency received a referral regarding emotional abuse of K.J. and Je. by mother and stepfather. The allegations were deemed inconclusive.

The social worker also re-interviewed the parties. Je. and La. stated that stepfather hit them with a belt. K.J. was not hit. Je. also stated that stepfather had hit him in the chest and thrown him to the ground.

Je. and La. confirmed that they witnessed stepfather physically abuse and hit mother. La. also reported that she witnessed stepfather punch Je. in the chest, and push mother to the ground. Finally, Je. stated that while living with the maternal grandmother, he observed a maternal aunt push K.J. onto a couch after she told him that he could not go outside at 8:00 p.m. K.J. stood up and started choking the maternal aunt. Je. became involved, tried to stop K.J., and started to kick mother.

The social worker also interviewed father, who stated that he knew only what mother told him. He was aware that K.J. had an altercation with an aunt. Father's primary concern was obtaining custody of K.J. Father reported that he had a working relationship with mother concerning K.J. while stepfather was in prison. When stepfather was released from prison, he threatened father that he would kill him if father came to stepfather's house. Father had to take mother to court to obtain visitation with K.J. K.J. had stayed with father from July to September 2004.

Father was divorced. Father's history showed a resolved domestic violence incident between father and his ex-wife. Otherwise, there was no history of domestic violence. The DCFS provided the juvenile court with a report concerning father that was conducted by a social worker in Illinois, apparently during father's attempt to obtain visitation with K.J. The Illinois home study, prepared sometime in the winter of 2003, reported that father's home was clean and well maintained. The home study also reported that father and mother met when father was six years old. When K.J. was born, father shared in his care.

The Illinois home study reported that father became animated when speaking about K.J. Father had numerous pictures of K.J. in the house, from birth to his recent visit. Father was concerned about the effect that stepfather's behavior would have on K.J.

Father was also upset that mother allowed K.J. to be sexually abused by the paternal grandfather, because mother had previously been sexually molested by the same man. Father questioned K.J.'s safety in mother's care and questioned mother's judgment. Father reported that he consistently paid child support to mother, although never ordered to do so by a court.

Father's friends and coworkers reported that father had high integrity and that he was highly regarded in the workplace. Father was reported to be a hard worker, never late, and accepted all work assignments and coaching from his supervisor. In conclusion, the Illinois social worker reported that father was an impressive young man, conscientious, self-critical, and had a strong sense of doing things right. Father also expressed a strong desire to be an active father to K.J.

After a continuance, the juvenile court conducted the jurisdictional hearing on December 27, 2004. Mother and stepfather waived their rights to a trial and pled no contest to the amended section 300 petition.

The court sustained the petition as amended and found the children described by section 300, subdivisions (a) (physical abuse); (b) (neglect/failure to protect); and (j) (abuse of sibling). The court continued the matter for a contested disposition hearing.

4. The Dispositional Hearing

By the time of the February 8, 2005 dispositional hearing, K.J. remained in Illinois with father. Je. and La. remained in foster care.

Mother was cooperative with her case plan. She was participating in domestic-violence counseling, parenting classes, individual counseling and group counseling. Mother was willing to accept in-home services. She was employed and planned to apply for Medi-Cal.

Mother agreed that she was not to monitor stepfather's visits with the children. She also agreed to stay away from his home. The maternal grandmother reported that while mother and the children lived with her, there were no incidents of physical abuse of the children or domestic violence. The maternal aunt voluntarily agreed to attend a parenting class.

The DCFS noted that mother had positive support from her family and resources in the community. The DCFS concluded that mother could provide a safe home for Je. and La. while the agency monitored the case. The DCFS recommended returning Je. and La. to mother's custody, with in-home services.

With respect to K.J., the DCFS recommended that he remain placed with father in Illinois. The DCFS further recommended that the juvenile court enter an order terminating jurisdiction coupled with a family law order granting physical custody to father with visitation for mother. Mother and K.J. had frequent telephonic contact. Mother was in agreement with K.J. remaining placed with father.

At the February 8, 2005 hearing, the juvenile court released Je. and La. to mother's custody. The court continued the dispositional hearing.

At the March 30, 2005 continued hearing, the juvenile court received into evidence a number of DCFS reports. The court also received into evidence the stipulated testimony of K.J. K.J. testified that he wanted to return to California to live with mother, Je. and La. in the summer so that he could finish the school semester. K.J. also wanted to spend holidays, summers and vacations with father. He wanted to return to California because his family lived there. If he did not return to California, he would be disappointed. The court then continued the hearing.

The DCFS filed an Information for Court Officer in anticipation of the April 29, 2005 continued hearing. There, the DCFS explained that mother reported that K.J. had changed his mind and now wanted to return to California before the end of the school year. Mother expressed concern about how father treated K.J., because the child had called mother crying and told her that father yelled at him. Mother stated that father had a temper, yet admitted that she had never had any concerns about K.J. staying with father.

The social worker spoke to K.J. by telephone. K.J. stated that father had yelled at him when he left dirty dishes in his room. Father also yelled at him to take the dishes to the kitchen and not leave them in the room. K.J. also stated that father makes him do his own laundry. K.J. denied that father called him names, hit him, or hurt him in any way. K.J. stated that he was properly fed.

When the social worker asked K.J. why he wanted to return to mother, K.J. replied that he was worried about mother because her diabetes was acting up. He stated that if he lived with her, he could ensure that she ate properly. K.J. did not have the same concerns for father, because father did not have a problem with his diet. K.J. stated that he missed mother and worried about her. K.J. stated that father knew he wanted to return to mother. K.J. gave the social worker permission to speak with father.

According to father, K.J. was doing well in his care. However, K.J. acted out after returning from California for a spring break visit. Father knew that K.J. wanted to return to mother's care prior to summer vacation. Father believed, however, that mother was â€